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Should I file a CUE or leave NOD in place?

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ADodge

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I have reposted this because originally I had posted it under someone else's question and I was asked to repost under a new topic.  Simply because I might get more answers and also there might be other VETs out there with a similar situation who could benefit from the advice given.

 I hope I am not repeating someone else's question.  This is not at all easy to understand.  So I'll just ask.  I was discharged in 1984 from the Navy.  I had married an active duty Navy enlisted and so my health care was still at the same base I was discharged from.  After 3 months post discharge the Doctor that was handling my health care suggested I file a claim for Asthma service connected.  Because when I joined the Service in 1980 I did not have Asthma but when I was discharged I was being treated for Asthma.  So I filed the Claim in December if 1984.  I was discharged the last day of March 1984.  And my discharge was honorable so no problem there.  The initial claim was that I filed was for Bronchial Asthma service connected. and it was denied in 1985. I didn't appeal it because back then I didn't know anything about appealing the denial and just figured that was it.  The denial stated THE EVIDENCE DOES NOT ESTABLISH SERVICE CONNECTION FOR THE FOLLOWING BRONCHIAL ASTHMA DUE TO ALLERGY.  Bronchial Asthma denied. (Funny that is what causes Asthma Allergies.  but god knows I grew up on a farm and never had any problems with allergies at least not so much as to cause me a problem with breathing.  And I had never been diagnosed with any allergies either before entering the service.)  Anyway time passed and I forgot all about this claim.  in 1997 I began receiving SSDI and part of my disability was the Asthma and by then I also had COPD.  More time passed and in 2014 the VSO in the town I live in suggested I file a claim with the VA for service connected disability for asthma. So I did.  And after again submitting to PFTs done by the VA I was approved at 60%.  Now I would never have questioned anything after that except that when I filed for the COPD and a few other items I was told that my representative was the DAV.  And I asked why was the DAV my representative and who in the DAV was.  And I was told told that back in 1984 I picked the DAV to represent me.  And I said "  I did???  Why would I do that?  and that response was "because you filed a claim back then.  That was when I thought SHIT I need to get a copy of all my records.  SO I finally did and that is when I learned and remember filing that claim.    So Here is my question.  Since Nothing except the severity of the Asthma has changed since 1984.  Would that initial claim be a CUE?   Wouldn't it be right to file a CUE regarding that claim so that the effective date of the current claim would date back to 1984?   Currently I have a NOD filed regarding the effective date.  But I really feel it is a CUE.  Is that right or not?    And if someone does answer this could you answer like you are explain this shit to a two year old!!!! LMAO  because All of this is just so Damn confusing to me!!!   

Thanks a lot,    

 

I was asked to scan and post some VA C&P reports and I will do that as soon as I get back from meeting with my Local Congressman.  I will keep you all in mind as I ask him about doing the back up of VET Appeals!!! And other Veteran topics!!! 

Aileen

 

SO this is what Bertha asked in response to my previous post of this Question:  

Did you or the rep specifically state "Due to Allergy" on the claim?

Do your SMRs reveal you did, in fact develop allergies in the military?

Can you scan and attach here their reasons and bases for the 1984 claim denial and the evidence they used?

Obviously, with the successful outcome of the 2014 claim for the asthma , the VA certainly considered your SMRs but it seems they missed something in the older denial....so maybe this would even by a 38 CFR 3.156 claim.

I know it is confusing but if we can see the older decision (and we might need the newer one too) we can determine whether there is cause for potentially more retro due to a better  EED.

Did the 2014 claim state the asthma was 'due to' allergies?

Cover C file number, name, address, prior to scanning and attaching it here.

I focused on the 'due to ' part because statements like that can lock us in to one theory of entitlement when other theories could be 'due to exposure to chemicals, via your MOS etc etc.

So Here is what I have but I also have this very strange 600 form that was placed in my medical record at the end of my in-active reserve time.  Notice the date Apr 8 86  See all the things it list that I am suppose to be allergic to.  Well if I had been allergic to all those things before I joined the Navy I would never have been able to join the Navy because I would have died as a child.  Considering I grew up on a Farm!!!!  I mean WTF who the hell is this Captain English and why is he putting this document in my Military medical record years after my discharge????  I don't understand!!!! This is way too screwy!!! 

Edited by ADodge
remov files
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One would think that as many remands that the BVA makes, that the Sr. member in charge of ratings in the RO would take this job more seriously!

According to the AL, more than 55% of appeals contain fundamental mistakes by the rating agency.  That's more than 1/2 of all appeals, which peaked last year at 433,000 pending appeals.  This is 215+K mistakes, which means that 215k Vets and their families will have to do without in many cases, sometimes living in poverty for years because someone got into a hurry and did not competently review the Vets medical history (which is one of the common errors).

These numbers (or approximations) do not reflect corrections that were made after initial claim decisions were made, before they actually got to the BVA (excludes de novo reviews, which occurs in every appeal before it gets to the BVA, when they issue the SOC) increasing the wait time for an appeal to get to the BVA and be assigned a case number  Many times, after a decision is made, CUE's are corrected before they can be forwarded to the BVA, requiring months more for benefits to be awarded.  The sloppy work at the RO is the core cause of this whole mess.  If the job was being done right, the first time, appeal ratings would drop by around 50% or more.

Edited by pwrslm
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I Agree with you pwrslm.  And a little over a week ago when I met with the congressman  who had an open meeting for  his district in Salem MA.  I brought this to his attention.  The fact that a lot of appeals that are backed up into the system are a matter of technical human error!  That a majority of these claims should simply be looked over at a regional level.  And not be held up in the appeal process of waiting almost 6 years!!! Which in the end either adds more retro years onto the claim or causes the claim to be shot back to the regional office for review anyway.  And what a slap in the face that is for the Vet who has been waiting all those years, who had known all those years that is exactly what will happen to their appeal!!! Yet no one at the Regional Office would listen or pay attention to what the Veteran was asking or explaining!!!  And why is that???  Personally I believe it's because for the most part those that work at the Regional offices 1. Don't want to hear what the Veteran has to say and 2. Don't believe that the Veteran ever knows what they are talking about (as in the Veteran doesn't know how to apply the laws or regulations to their case like the regional worker does)!!! 

It's like my NOD.  My NOD has been filed at the last moment because I was the one that brought it to the attention of the DAV rep that has been assigned to help me with my cases that I felt the Regional Office should have taken the 1984 claim into consideration when they made a decision about the Effective date of my claim. I asked her why they hadn't and if I had to file a NOD over that or could I just ask someone at the Regional Office why they hadn't taken that original claim into consideration?   It took her over a month to get back to me with an answer! Thank god  I already   had the NOD ready to send out!  

But since I found out how long the Appeal process can take I decided to call the Records Management Department and check with them about what was up.  Oh well lets see its about a five year backlog  on appeals.  I could file a CUE if I am not mistaken by the information that was given to me I can not have an Appeal and a CUE filed at the same time!!!  And that I might be better off filing a CUE because that is like a claim and won't take as long as an Appeal.  But of course this person was not telling me what to do or even suggesting what I should do she was just telling me about the amount of time each process has behind it. BUT what she doesn't say is what is involved with filing a CUE!!!!    All she said was that it might behoove me to hire a lawyer or to get some help with my claim so that I fully understand what each action is before I do anything to the NOD I currently have filed.  SO then I asked what happens when a Veteran has an illness like cancer or leukemia?  And Time is not on their side any more.  She said that SOMETIMES That is taken into consideration!!! If your Doctor will verify that you only have so much time left!!!

REALLY!!!!  WTF???  I Have CML  It is a rare form of  leukemia!  I am currently on my 2nd form of Chemotherapy.  I will have blood work done in a few weeks which will tell me if I have had some level of Molecular response to this Chemotherapy.   I'm Keeping  my fingers crossed and hoping for the best!!!  The last Chemotherapy I took  was good for almost a year!  Then it suddenly stopped working and that is just the way it is which this type of Leukemia and the Chemo drugs used to treat it.  Sometimes they work forever and sometimes they just stop working.  Then you have to look at transfusions and other messy types of Chemos!!!  Things like that have a tendency to shorten ones lifeline!!! Know what I mean!!!   But it is not like my Doctor can really say one way or the other about my prognosis.  He is as hopeful as I am!!!  We are both hoping that I will have a major molecular response and then stay there forever!!!   What exactly is it that the VA wants my oncologist to write.  That I will be DEAD in less than a year???? Honestly!!! Whose Doctor is going to write such a thing about their patient??   SO because of this I am a bit concerned and worried what the future will bring and is there a time when I should honestly think about having my  Doctor weigh in on this whole mess???  

It really makes me sick thinking about all the Veterans out there who wait so long over such stupid oversights!!! 

 

Sorry about the bitching. guess it's just one of those days plus I spilled coffee on my keyboard and now have to get a new laptop because this one is dying even as I write this!!!.  I do want to say thanks for all the advice!!! Everyone is always so very helpful on this site and I know I would be totally out in left field without a  game in play without the help I Have gotten from everyone here!!! 

Aileen

BTW it only took me 2 hours to write this note!!!! LMFAO        

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I had a friend with 4th stage ovarian cancer that was reversed using cannabis oil.  Yup, pot might actually have a medical use after all...some Dr in Canada cured 5k people with the stuff...now they want to toss him into the pokey instead of fund his work.  Go figure...

 

BUT, the VA will be sidestepping this for some time to come.  The deal with cancer, you need to put in a request to expedite your appeal.  Just do it. I dont think it would hurt anything.  If you get lucky, oh well, if not, you dont lose anything because you are going to be in line no matter what. Don't worry about any letters from any doctors, just write a nice, brief factual letter about your condition requesting that your case gets expedited, collect any non VA health records on your cancer if there are any, and upload it on EBenefits site.,Then, call up Peggy and ask her to file the form requesting that your case gets expedited.  Then let it go.  No stress needed!  Just do something that brings joy into your life, you are better off happy than not. and this isn't worth the stress.

Edited by pwrslm
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Not to sound too stupid!!!  LMAO!!  Perhaps it is the ADHD in me.  But I have heard this PEGGY mentioned previously and I am not really sure what or who this is.  SO could you please explain?  Thanks so much!

 

Aileen

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OK Never Mind disregard the Question about Peggy!!!  LMFAO  I realize now that it is the 800 number on ebenefits!!!!  ADHD is horrible when the meds wear off!!!!!

 

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Peggy is the name of the Eastern European accented dude on that tv commercial, someone calls a service center for some issue, and he answers the phone "Hello this is Peggy" or something like that.

Semper Fi.

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