Berta's Cue Template

[warren]

Can someone point me to where the cue template is? Berta and Basser if you read this, we were talking about my two EKG'S for IHD C&P. The VAMC EKG"S say no diagnoses. The civilian cardiologist's EKG showed that i had a heart attack, two bad valves, electrical problem and low heart beat. I had a problem with my private ins. and i didn't have the stress test this week but will have it monday.

GOD BLESS

[Carmand47]

 

 

I need your help writing a successful CUE letter. 

 

 I respectfully request the VA to call a CUE, (Clear and Unmistakable Error) under provisions of USC 1509 On part of 27Apr04 decision from the Louisville, Kentucky VARO and to correct the error of percentage assignment.

On page 3, #2 of this decision letter It references as so “evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis currently evaluated as 10% disabling VA granted an increase evaluation of your service-connected neck condition DC 5241 because the evidence shows this condition has worsen. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased to 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Previous to this decision dated 27apr04 a decision letter dated 22May01 awarded me an increase to 20%. I was originally awarded a rating of 10% when I applied 0n 20may99.

On the 22May01 decision letter, page 2 Under Decision #1 “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis is granted with an evaluation of 20% effective 20May99.” Page#3 Under Analysis para 1-4 “direct service connection an evaluation of 20% is assigned under diagnostic code 5293 from 22May99 the date the claim was received. An rating of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher rating of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine. The  exam shows decreased range of motion the X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain therefore 20% evaluation is warranted for this disability at this time.  

 In conclusion. I originally submitted a claim for VA benefits for status post discectomy and interior Fusion cervical spine at C5-C6 with arthritis 20May99 it was rated under the DC 5293 (for that time frame). It was rated at 10%. So, I applied for an increase Based on a rating decision 22May01 VA awarded me a 20% increase.  On 30Jan03 with the supported representation of The Kentucky Center for Veterans Affairs I filed for another increase because my disabilities had gotten worse, so I filed a disability increase claim for the following disabilities:

·         Gynecological difficulties to include damaged sphincter, damage from a torn rectal vagina fistula and episiotomy repair.

·         migraine headaches.

·         bladder problems.

·         personal trauma- physical abuse and emotional abuse from husband and depression secondary to this trauma.

·         left hand injury.

·         ganglion cyst left hand and scar.

·         arthritis in neck & spine, right hip, right knee, left heel and left ankle.

·         spinal Fusion longer able to work.   

 

*NOTE per 38cfr 4.71a SPINE Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees Shows that I met the requirement for 30 % increase but I did not receive it.

The VA’s failure to notate the previous percentage rating properly manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 30Jan03 It would have increased my rating for my Status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.

 

 

 

 

 

 

 

 I respectfully request the VA to call a CUE, (Clear and Unmistakable Error) under provisions of USC 1509 On part of 27Apr04 decision from the Louisville, Kentucky VARO and to correct the error of percentage assignment.

 

On page 3, #2 of this decision letter It references as so “evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis currently evaluated as 10% disabling We granted an increase evaluation of your service-connected neck condition DC 5241 because the evidence shows this condition has worsen. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness on your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

 

Prior to this decision dated 27apr04 a decision letter dated 22May01 previously awarded me an increase to 20%. I was originally awarded a rating of 10% when I applied 0n 20may99.

 

On the 22May01 decision letter, page 2 Under Decision #1 “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis is granted with an evaluation of 20% effective 20May99.” Page#3 Under Analysis para 1-4 “direct service connection an evaluation of 20% is assigned under diagnostic code 5293 from 22May99 the date the claim was received. An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine. The  exam shows decreased range of motion the X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain therefore 20% evaluation is warranted for this disability at this time.  

 

 In conclusion. I originally submitted a claim for VA benefits for status post discectomy and interior Fusion cervical spine at C5-C6 with arthritis 20May99 it was rated under the DC 5293 (for that time frame). It was rated at 10%. So, I applied for an increase Based on a rating decision 22May01 VA awarded me a 20% increase.  On 30Jan03 with the representation of The Kentucky Center for Veterans Affairs I filed for another increase because my disabilities had gotten worse, so I filed a disability claim for the following disabilities:

·         Gynecological difficulties to include damaged sphincter, damage from a torn rectal vagina fistula and episiotomy repair.

·         migraine headaches.

·         bladder problems.

·         personal trauma- physical abuse and emotional abuse from husband and depression secondary to this trauma.

·         left hand injury.

·         ganglion cyst left hand and scar.

·         arthritis in neck & spine, right hip, right knee, left heel and left ankle.

·         spinal Fusion longer able to work.   

 

 

 

*NOTE per 38cfr 4.71a SPINE Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees Shows that I met the requirement for 30 % increase but did not receive it.

 

The VA’s failure to notate the previous percentage rating properly manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 30Jan03 It would have increased my writing from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.

 

 

 

 

 

 

 

[Berta]

“ The VAMC EKG"S say no diagnoses. The civilian cardiologist's EKG showed that i had a heart attack, two bad valves, electrical problem and low heart beat. “

If these separate EKGs were done around the same time frame, then that could be a basis for a Section 1151 claim, if the heart disease got worse after VA EKG said 'no diagnosis'...I have read many EKGs and that is not a term used on the strip narrative,as far as I know.

I can't find my CUE template here either.....

CUE involves legal errors when the medical evidence that has already been established.

This is part of my 2004 CUE claim:

To whom it may concern:

This is a claim under CUE, 38 USC, 5109A.

“I believe that VA erred in the lack of application of 38 USC 1114 regarding the above veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death.”

( I referred to and enclosed copy of the SMC statutory mandate,I also enclosed the 1998 DIC decision I received, that the CUE was in and also I enclosed the veteran's posthumous 100% SC P & T PTSD award.

100% SC plus 60%SC of in independent system equals SMC.

I also stated the CVA ratings were wrong...they rated the CVA at 80% in 1998 and then awarded 100% under 1151 for the CVA last year as well as the SMC Housebound award..

The medical evidence had been established and the VA committed errors in the 1998 decision that manifested an outcome that was detrimental to me until they fixed it in 2012.

Also I had an additional CUE filed in 2004 for no diagnostic code or rating for my husband's fatal heart disease.The established medical evidence proved this was a malpracticed ratable disability causing his death, under 1151 and FTCA.,due to malpractice.

I keep forgetting I think I won that CUE claim too in my Nehmer IHD decision last year . 6 years retro at 30% IHD due to AO.

Nehmer covered that VA had to rate and pay but the CUE supported the EED.

If you mean asking the VA to CUE itself during the appellate process ( in other words there is still time to file a NOD)

this is the template for that:

I made this maneuver up and it has worked for me.

This decision (the January 17^th,2012 decision in this CUE ) was an award that I would not have gotten if I had not requested them to CUE themselves on their initial denial, Dated December 2011 I think,.

I would still be at the RO or at the BVA with a thumb up my butt waiting for someone who could read.,but instead I made a frontal attack again with the power of CUE on the denial letter and succeeded in getting that fixed in 3 weeks.

I have asked the VA to CUE themselves however,on the award letter.

One statement was wrong legally,in the award letter , to my detriment, and they owe more cash.

VA said that claim is with a specialist.

I am not sure what they mean by a specialist.A twelve year old could understand my recent CUE claim.

[carlie]

By chance is this it ?

Berta(IP: 10.32.33.197)

HadIt.com Elder/SVR Radio

Posted 26 September 2012 - 10:12 AM

"I was denied permission on a pop up to post this but it is in the thingy on the right side of the main board.

It involves How I did it CUE post.

"Bumping it up

Try to write the CUE basis in one paragraph.

Refer to and enclose copy of the past denied decision you are filing the claim on. Include the rating sheet.

Send it to the RO who made the CUE. Get a roof of mailing.

Enclose the rating sheet from the decision because It contains the ratings for the established medical evidence.

Clearly define the regulations they broke and refer to the decisionas to how the misapplied them or ignored them. Copy those regs from 38 CFR or Use and/or M21-1MR and paste it with a hyperlink into the CUE claim.
Or refer to the regs and attach them.

Tell them why the error cost you money.(how it "manifestedly altered the outcome” of that specific claim.

No superficial rhetoric.... this should only take one page or maybe one additional page , including a list of your enclosures.

If my new claim is denied, which I dont expect, I will then file a CUE on a past decision regarding the same issue.

NVLSP agreed with me as to that scenario a few months ago but I want to try a different approach first as 1151 claims have no time limit restrictions.

The potential CUE will be simple:

My husband's HBP was given a NSC rating in a 1998 decision I received.

The medical evidence VA said they had from VA Central for the 1998 1151 award letter reveals the extensive malpractice of my husband's HBP and an 'as likely or not "statement from a head VA Central cardio doc.

The award failed to properly rate and consider the 1151 factor regarding the 1998 award.

I cite and also enclose copy of M21-1 Part IV ,March 19,2004, Change 113, under 3.09 ISSUE, as highlighted for your consideration.

Please prepare and award the proper retro payment as an accrued benefit to me ,under this clear and unmistakable error in the enclosed decision.

(I sure might throw in more legal beagle stuff but basically that is all there is to a CUE claim.(
I could actually use the CUE award I got in January as evidence too.

However, the BVA has denied or dismissed many CUE claims because the claimant did not clear define the regulations or statute that the VA broke.

Those claims are usually dismissed by the BVA without prejudice, meaning if you word the claim a little differently and identify the exact regs they broke, it can be filed again as a new CUE claim."


I think I have made too many posts today already.Maybe why permissions was denied.

dont know if this will go through.

I dont mind though as I have been repeating CUE info ad finitum for years now and I consider the denial pop up as a Reprieve!!!!!

Everything I know about CUE is here anyhow.No sense in repeating it over and over again......it juuuust has to be read. "

OR . . . .

OR . . . .

[warren]

Berta And Carlie,

Ladies, I prayed to GOD and asked him to BLESS you both with good health, peace and joy. Veteran's owe you both a big hug. I've got a lot of reading to do. I'll let you know the outcome

GOD BLESS

[Berta]

Carlie, thanks for finding that!

I can tell I was frustrated when I wrote that post in September.....

as Warren said he needs to do a lot of reading and that is the key to filing a valid CUE claim.

Legal errors certainly can involve many different things.

I thought I posted this recent CUE BVA award yesterday but maybe I didnt:

“3. Entitlement to an effective date earlier than July 11, 2007, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD), to include on the basis that the failure to grant service connection for this disability in a March 1996 rating decision constituted clear and unmistakable error (CUE).”

FINDINGS OF FACT

1. In a March 1996 rating decision, the Veteran was denied entitlement to service connection for PTSD on the basis that he did not have a credible stressor supporting his current diagnosis of PTSD.

2. In the March 1996 rating decision, the RO failed to consider the Veteran's documented in-service GSW as a credible stressor upon which a diagnosis of PTSD could be based and failure to do so was outcome determinative.
ORDER

Entitlement to an effective date of September 1, 1994, for the grant of service connection for PTSD, on the basis that the failure to grant service connection for this disability in a March 1996 rating decision constituted CUE, is granted.”
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files1/1307054.txt
19 YEARS of Retro!

I guess the rater saw GSW and thought it meant the veteran was a Gold Star Wife.Duh!!!!!!!!!!!

A GSW (Gun shot wound) is a credible stressor.

The case is unusual in that this was an accidental GSW. However, not willingly self inflicted.