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Cue Or Not To Cue

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Michellee

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If anyone see's Berta please send her my way. I know she will direct me in the right direction. Well here is the deal. I was medically boarded off of active duty for an accident that was well documented actually I was even transfered not quit cleared and sent to the VA for evaluation and treatment. Within my presumptive period after the medical board/disharge I filed numerous claims all at once for numerous symptoms/injuries. Most was given o% or denied and few were given very low percentages like for my foot/hip/uterus/pelvic etc. That was then back in 98. The thing that bothers me to this day is that I think a mistake was really made on the neck and back claim. Today I have pretty good ratings for my lower/back/sciatica etc and was eventually service connected. My neck progressively has gotten worse and worse and still not service connected. The rating the decision they gave me right after the accident for my neck makes no sense. They didn't even do a MRI back then even though I begged. As a result today my MRI's have shown I have spinal cord injury from the cervical area and all sorts of spurs from previous fractures in the neck area. I have stenosis, Ankylosing spondylitis of the cervical spine, myelopathy of the cervical spine, bulging disk etc. So when I filed for neck and back pain I was trying to call their attention to address my injury to my neck and they denied it. Here is what the rating decision in 98 stated for my neck during the presumptive period (after falling in a 15 foot hole which they had the accident report evidence).

The law provides that a person who submits a claim for VA benefits must submit evidence sufficent to justify a belief that the claim is well grounded. A well grounded claim is plausible claim, one which has merit on its own or is capable of substantiation. Such a claim need not be conclusive, but it must be accompanied by evidence which shows that claimed condition exist and is possibly related to service.

Compensation is payable for a disease or injury which causes a disabling physical or mental limitation. The evidence regarding neck and back pains fails to show a disability for which compensation be be established. It is therefore not a well grounded claim which can be resolved. In order to establish a well grounded claim, it is necessary to provide evidence which demonstrates an actually disabling condition. (this is the part that makes me wonder whose records were they looking at) Services records contain no evidence of an injury to the neck or back and no indication of a chronic disease process relative to neck or back. Xrays of the cervical and lumbusacral spine on Va examination were normal.

Now they did not assist me in addressing my symptons. Today they have changed their tune about my back (lower) and of course I lost the initial dates. I just accepted it. Back then I really didn't know much about claims or the Va and would have have believed if they told me the sky was purple. The thing is through out the years since the initial claim I kept complaining and seeking answers about my cervical neck pain and finally about 2006 they started doing MRI's and other tools to look at it. That's when I started pulling my records and finding all the results of the MRI and progression of my back and neck injury. I didnt even think to pull records until another veteran taught me the process. I just didn't know. I always played by the rules and I thought they did. I am still suffering today. I finally after my doctor told me blantantly that this injury to my neck was a direct result of the accident because of how young I am and how the MRI's look. Today I do recieved treatment for my neck but it was never service connected no matter what my doctor told me. I had to make a decision and so not really understanding about CUE's I thought it may be best to just reopen my claim from 1998 for my neck pain (cervical) and file for all the newly diagnose cervical results from my doc and MRI. After reading so much on Hadit and another Vet site I am wondering If I really did the right thing. Did I just let them off the hook. I have read multiple post on this site about what makes a claim, Browskoski test etc., and I am wondering I made the right move. It appears that I didn't I keep asking should I have Cued or Not. They were well aware of my accident during the first claim and had the accident report so it was well grounded. Sure it may not have been conclusive because there was no official diagnoses made but I was seeking medical answers and care based on my symptoms to which I kept being told maybe I pulled a muscle in my neck. They had the after action report from my commander which showed evidence, they had my medical out paperwork where I checked the box for back and neck pain. Sure the pain then wasn't as bad as it is now but it did cause me pain and spasm that I expressed to them in my claim as neck and back pain. I didn't know then how to write it up any different than that and they didnt bother to C & P all they did was an xray which they claim was normal. Funny thing is couple of years later I continue to complain and the next set of xrays shows spurs and other things in the same area. Obviously, the pain that I was feeling then in my neck and back during the presumptive period was the injury that I am still suffering from and proven by recent MRI's today. I would like to hear various takes on this. Cue or not to Cue?

Edited by Michellee
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  • HadIt.com Elder

Michellee - Guess the VA wins and you lose!!! It's okay to give up . . . I understand. You do realize that nothing a VA employee tells you needs to be the truth. They cannot be held libel and so they "lie." Anyway, good luck! To others who may be reading this, don't, ever, ever, give up cuz when you do they win by default.

pr

Appears that the VA is moving on my claim pretty quick. I was contacted by QTC of some evaluations for everything I put in for in reference to my increases. The only concern I had was why no eval was ordered for my neck when I called the 1 800 # they said that the VA doesn't always have to evaluate via a outside medical opinion if they feel they already have enough on record. So I hope that was the rater's thinking as I was told. I don't think I will get to keep the original dates though. They told me that it was already decided at that time and that I did not appeal so it closed out. So there is no hope for a cue, I guess. They just did not have enough evidence that a problem existed at that time and I didn't push the issue. So anyone reading this learn from my mistake. I should have been more persistant about my neck injury and followed up. Just because I didn't understand the process is not thier CUE. So I am going to have to live with reopening it from here with the new evidence, nexus, and treatment records. I can still show them I have been suffering since that date from that injury as just evidence of progression to reopen. Thanks for everyone's help. :cool:

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  • HadIt.com Elder

BVA declared to me that in no way can a problem with VCAA or duty to assist can be a CUE. If I suspected I had a CUE I would file for it and then if I lost I would go see if I could find a lawyer to take it. If you have doubts file the claim.

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THIS IS AN UPDATE RECEIVED CLAIM BACK SATURDAY IN MAIL. Dear Carlie, Phillip Rogers, Berta, John and others whose input has really helped me along the way with this. I want to thank all of you for your help. Also I am somewhat in shock as to some of the results of my claim.

I did not cue. I filed for increase on my S/C MDD, PTSD, I filed for increase on my S/C foot drop, I filed for increase on S/C hip which resulted in shorten leg from bone infection in hip., I filed a new claim on my cervical neck and all the diagnoses from VAMC docs/MRI which the neck was ongoing since presumptive period after medical discharge.

Keep in mind I am already 80% TDIU. Results from claim is Foot drop went from 20% to 30%. Hip remained at 10%, Neck (Cervical) is deferred. (Not sure why). MDD/PTSD went from 30% to 100% and now they want to propose INCOMPENTECY. They also added a SMC S for housebound. I did not get an SMC for the foot.

I AM IN SHOCK. NOT SURE WHY AND I AM NOT INCOMPETENT IN ANY FORM OR FASHION. NOT SURE WHAT HAPPEN WITH THAT.

So I will request a hearing and mail it out tomorrow and send in a rebuttal. My husband and I are good stewards of our financial affairs. We have no lates with our bills. We don't gamble. We have two children under 13. Our kids are taken care of. We own our home and have no lates on our mortgage. I vaguely remember the C&P doc asking who handles the bills and I thought she was asking as in do I have a good support system and I may expressed that my husband does the bills does the majority of the bills. That is by choice not based on any incompentence. I was running a fever that day and found out later on that day. I was sick I was taking an over the counter med for UTI which I get alot. Month later the infection spread to my bladder and I was almost admitted to the VAMC. I refused my PCP was not happy with me. So there was alot medically going on and I can't recall what all was said or done. I know I was very lethargic during the appt cause I was sick as a dog. I agree I do have some issues and its a daily struggle for me but I am not incompetent and I order my meds online and I pay my bills online and some are automatic monthly. I do this so I rarely have to leave the house. I have alot of anxiety and things happen. So why the proposal, not sure. I will attempt to straighten it out though.

Well this isn't doing my anxiety and depression a bit of good and I am happy about some of the results but that part just soured it. If you know what I mean.

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This is a great decision Michellee

except for the incompetency part.

By all means fight this and ask for a hearing.

Meantime fortunately you do have a husband who could be your payee.

I hate it when the VA does this crap.

They will hinge on whether or not the veteran is the household bill payer and use that against the veteran.

You gave here some very good reasons why they are wrong.

Do you have a family lawyer?

If so I wonder if they would be willing, with the fact you pay your bills on time etc, to make a statement to the VA for you as to your competency.

Or do you have proof of any credit or bill payments solely in your name you can prove you yourself paid?

Maybe it is best to go to the new VA Watchdog Today site where Jim Strickland has some excellent advice on these incompetency proposals.

DO you get SSDI? If so does that check come directly to you in your name?

Would your VA MH provider be willing to state you are competent?

In most cases(but not all) in my opinion this stuff is VA BS- plain and simple- just so that they can hold onto the retro longer.

"I pay my bills online and some are automatic monthly."

I do that too and my email addy is solely mine -if your email addy that they used to set you up for direct auto payment is yours and not shared much with other family users then I would use that too as evidence.

You sound like a stay at home mom as well as being disabled.That is a lot to deal with.

But how can someone raise young kids if they are incompetent?

Ridiculous.

Hopefully others will chime in here but keep in mind you have had a Victory with your claim.

(Another reason they cant say you are incompetent) and do what you can to appeal this proposal but bear in mind that this has nothing to do with you as a person, it has to do with the arbitrary VA system -always looking for ways to withhold money.

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Here is the VAWAtchdog link to fiduciary proposals:

http://www.vawatchdogtoday.org/Fiduciary_Appointments.html

About 2 years ago there was quite a hoopla over fiduciaries when it was discovered that some VA fiduciaries had stolen comp from veterans.

One fiduciary -appointed by the VA as there was no family member to appoint- was found to be a convicted felon!

The VA was picking fiduciaries without even doing a background check on them.

As a VA claimant myself for much of the past 17 years, I feel the VA itself is incompetent when they cannot even read evidence correctly.

I had to NOD my last award letter because the VA employee who prepared it made up a regulation that doesn't even exist.

And I sure proved the incompetency of multiple VA doctors when they caused my husband's death.

This stuff really ticks me off.

In most American households, as Jim says in his articles at the link, one spouse always handles the bills.

If that spouse is not the veteran, the VA uses that to propose incompetency and it is absolutely ridiculous, especially when we all, as claimants, deal with so many claims errors on VA's part.

I think they only do this when the retro is over 20,000.

I guess if the retro is only 19,000 or less, they feel that vet is competent enough to handle that.

It makes no sense at all.

Edited by Berta
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This is a great decision Michellee

Thanks, its just hard to feel good about this victory in all. Some things good, and this is very bad

except for the incompetency part.

By all means fight this and ask for a hearing.

Meantime fortunately you do have a husband who could be your payee.

Yes, I will prepare just in case and open separate accounts and move my VA compensation to a personal account.

I hate it when the VA does this crap.

Me too.

They will hinge on whether or not the veteran is the household bill payer and use that against the veteran.

I read Mr. Stricklands site about this and learned alot.

You gave here some very good reasons why they are wrong.

Do you have a family lawyer?

No, should I get one for the hearing. I didn't think the a lawyer could really speak on my half to the VA as well as my husband and I could. The only thing I have to say to them (VARO) is that I can pay bills and show them the proof.

If so I wonder if they would be willing, with the fact you pay your bills on time etc, to make a statement to the VA for you as to your competency.

Or do you have proof of any credit or bill payments solely in your name you can prove you yourself paid?

Yes, I have two credit cards in my name only that I solely pay for.

Maybe it is best to go to the new VA Watchdog Today site where Jim Strickland has some excellent advice on these incompetency proposals.

Okay, will do.

DO you get SSDI? If so does that check come directly to you in your name?

Yes, But they are direct deposits to our joint family checking account.

Would your VA MH provider be willing to state you are competent?

No, I asked My current MH at the VAMC and she told me they dont allow them to write letters. She said she would put it in her progress notes and that I can pull a copy of that and submit it. So I guess it's the same. She did say she felt I was competent.

In most cases(but not all) in my opinion this stuff is VA BS- plain and simple- just so that they can hold onto the retro longer.

Yep, although mine was less than 5000

"I pay my bills online and some are automatic monthly."

I do that too and my email addy is solely mine -if your email addy that they used to set you up for direct auto payment is yours and not shared much with other family users then I would use that too as evidence.

Great idea, will add to evidence list.

You sound like a stay at home mom as well as being disabled.That is a lot to deal with.

Yep, I have two older children that assist one is 25, and other 21. So we manage.

But how can someone raise young kids if they are incompetent?

Well I hope I win because I wonder if that could prompt them to come after our children with social service.

Ridiculous.

Yes, it is they are great kids well rounded and have karate, in evening that my daughter takes them too and doing well in school. Boy scouts members. So they are well taken care of.

Hopefully others will chime in here but keep in mind you have had a Victory with your claim.

Yes, and I want to feel the victory its just hard too at the moment with this pending action of my head. It just real bothers me and scares the crap out of me. My anxiety is high. I started cutting again. Woke up in bloody sheets with a 1/2 gash on side of my stomach. I have got to hold it together. I had stopped cutting a year ago after I was put on an additional meds and it was working great

(Another reason they cant say you are incompetent) and do what you can to appeal this proposal but bear in mind that this has nothing to do with you as a person, it has to do with the arbitrary VA system -always looking for ways to withhold money.

I know I shouldn't take this personal but it feels like it. Just the label has such negative connotations when you think of someone that is incompetent. Then how the world views you and how your rights are stripped. It affects your ability to bear arms, own property, and who knows what other legal aspect. What about creating a will, what about saving for my kids college. Thanks again. Anyway, I am grateful and thankful that Va worked my claim so quickly they did do a good job on processing time I thought. I filed this in Jan 2011. C&P in Apr. Decision now. I did go forward and not backward. So it is a win. I really need my neck to be service connected although they have always treated it. My lumbar is SC and my sciatica bilateral. I give up on the foot drop that I have as bad as it may be. I have no K, and it's okay. I did get an increase from 20% to 30%. So they do acknowledge it has gotten worse and have foot drop. Now the PTSD, what happen to the MDD, I never knew the VA to change the complete MH rating from one to another. I thought they would just give me an increase to 50%. I am not complaining I just always heard that they don't rate more than one MH condition. So I was suprised to see that the award letter stated PTSD rather than MDD as it always did in the past.

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