free_spirit_etc

I think they filed a CUE because they rated the IHD at 30% and with the AICD, he should have been rated at 100%. The VA then requested a new DBQ that showed the AICD was related to the IHD. jcolwell - I still think since they specifically told you to hurry up and submit that so they could rework your claim, you still have a good chance that they will resolve this fairly quickly. Wishing you luck!

From what I am reading in the "books", they still owe me a SOC. When I filed the NOD, the group that made the rating(San Diego under Nehmer) was responsible to send one to me. All I have is the rating, which all of you are privy to. I am not aware that can be a SOC according to what I have read. Tell me if I am wrong. I thought the decision you posted was your statement of case. I see now that it is just listed as a rating decision. But it does give the reasons they arrived at the decisions and the evidence used. It also tells you that you have the right to appeal within one year. Did it also include pages and pages of law? Most SOC do. Is this the decision that you filed an NOD to? The original RO doesn't send a SOC after an NOD. They send you a rating decision and SOC, then you file an NOD, then the case is reviewed again and you are sent a SSOC (Supplemental Statement of Case) after the DRO review.

Good finds on the sarcoidosis cases. Are any of those CUE cases? Or are they just traditional BVA appeals?

Sorry. I have been much more busy that last couple days -- and will probably be this way until the end of the semester. I haven't had any personal experience with VA lawyers, but there are quite a few people on this forum who have. Most people generally recommend you get a lawyer for a CUE, especially a complex one. I will see if I run across some of the names that have been recommended on here. I thought the PTSD questionnaire was new this year. If you filed a request for extension, the VA should respond. But I don't know if they ever do.

I don't think hurry to the VA means the same things as hurry does to normal people. The July 2014 is probably just what got programmed in, but isn't a real date. I would expect that they will get it resolved much quicker than that.

service connection for right nephrectomy due to renal cancer as secondary to the service connected disability of heptits c So it looks like they only considered the surgery, but didn't consider the cancer. I would think this would be a CUE. The cancer claim should be considered "deemed granted" (if the VA even uses deemed granted -- usually you just hear of deemed denied..) But they have said that the cancer is secondary to hep c. So they granted the cancer -- they just didn't rate you on it.

Nice thread here:

It sounds like you are on top of the diabetes one. And yes, they are supposed to give you the highest possible rating without making you have ALL the symptoms. I just saw a case recently on the regulation of activities part. But I don’t remember exactly what it said. It is good to read the BVA cases on both denials and granted claims, to get a good sense of the reasoning they use. I don’t recall the specifics of the case, but the doctor had even written the veteran had regulation of activates, but the BVA said the kind of activities that needed to be regulated weren’t regulated. Again, I don’t recall exactly what it was – but it is good to read some of the denials, or the why we didn’t grant X percent decisions, so you can make sure that those reasons are well explained in your own claim. The BVA will read arguments. When dealing with the RO – they generally don’t get all into all that stuff that I know of. If you are trying to get something granted at the RO level – basic is better. The rule says ___. My evidence shows ____.

I saw that. But I wasn't seeing the AO connection with those. I was thinking you were granted SC for sarcoidosis because it occurred in the service, not because it was caused by AO. If so, your sarcoidosis is not considered an AO condition, as far as your claim goes. Since sarcoidosis is not an AO presumptive condition, you would need a doctor to state it is more likely than not your sarcoidosis was caused by your AO exposure, in order for them to consider it SC because of AO. (And even then, they might not). But that would be a lot to go through, since you already have SC for sarcoidosis anyway. If a doctor says your PVCs are caused by your sarcoidodis (and the VA doesn't argue that point) then you could be granted SC on the PVCs as secondary to the sarcoidosis. But again, that wouldn't be an AO condition -- as your sarcoidosis has not been considered an AO condition by the VA (in your case). The only reason I can think of to try to get it connected to AO, is that I am thinking that you still have a pending appeal on the Nehmer claim. In that case, it may be possible to get retro on the condition -- but I don't really know -- because I am not familiar with Nehmer claims enough to know if they are readjudicated on the evidence in the file, or if you can keep adding evidence. In any event, you would need a doctor's statement to make those connections.

When you are building your court cases, keep in mind there are different arguments for CUE and for regular appeals. So some of the really nice arguments on appeals aren't valid on CUE claims. And if you make the "wrong" type of argument on any of the issues, they will seize that argument.

Most VA attorneys only take a portion if you win. So you might want to check into that at some point. I am not saying you will never win a CUE claim. I am saying it won't be easy. The standards of proof are so much different. But if you keep reading and studying, you can keep putting it together. But you want to make sure when you file it -- you have it right. I wouldn't do it half-baked. And in the meantime, you probably want to get SC for the conditions you can get SCed on... and the earlier effective dates, cues, increased ratings can still be done later. But I also totally get wanting to go back and prove to the VA you were right. I am dealing with that on my husband's claim. Widows can't file CUE claims on any decisions made on their husband's claims. We can just file for accrued benefits for pending claims they had at the time of their death. But I want to go back and show them how many errors they made. I say "error" lightly though -- because I think they knew exactly what they were doing. But since they pretend like they upheld their duty to fairly adjudicate the claim, then we have to pretend like they made an "error."

Yippie! I saw your post and was hopeful --then I noticed it was posted in success stories!!! So happy for you! And I agree - the best part is when the BVA acknowledges very little probative value to the negative C&P exam.

Wonder what the laws were, or where to look. I see a lot of VN and KOREA vets using the "due process" approach. This from a rebuttal to a SOC: The American Constitution requires that a person cannot “be deprived of life, liberty, or property, without due process of law.” The Federal Circuit also stated, “We find that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits.” Do they win with this argument? They generally consider if you had the right to file a claim, be informed of the decisions made, and appeal the decisions, your due process rights were met. Kind of sucky when you find out years later that your claims were not being decided fairly - and they say you should have caught it and complained back then, though... There is kind of a tangled web involved....

"If I can get them to reevaluate back to then, or after 1988, when I again asked for an increase, and was denied from then to now." Generally a newer decision subsumes an older decision. So generally, when you see someone be able to go back to a very early date, there were no subsequent decisions in the meantime, or they are still appealing the most recent decision. But if you have several intervening final decisions between the original decision and now - it is hard to go back and re-argue the first one. "It appears that they "NEVER" actually looked at my records in depth. You see some of my court citations. Could this be a CUE, or should I just try the "reopen" on new and material as it is apparent they never reference and PFT exams from '85 except their own." For CUE you would have to show that they made a clear and unmistakable error in that previous decision. They don't actually readjudicate the claim. They don't say they really should have made a different decision. It is different than an appeal. You have to show that no one with any amount of human IQ potential could have looked at the evidence and came up with that decision. For original claims, from what I have read, the service records are mostly just to establish SC. The follow up records are what they go by to discover current level of functioning. (i.e. your disability). So they won't generally use the older PFTs to decide how disabled you are now. They only use the older ones to determine if the condition started in the service, or if there was chronicity.

"Where did you find this?" Went to BVA search http://www.index.va.gov/search/va/bva.html typed in sarcoidosis and 1987 and read a few cases that discussed people being granted SC for the condition back then. The old rating schedules should also be in the older editions of the Veterans Benefits Manuals. The VSOs should have copies they would let you read. (But they won't let you take them...) They should also be available through the Dept of Veteran's Affairs. Keep in mind if you are going to try to argue CUE, it will be based on the laws that were in effect at the time. So in order to effectively argue them - you would need to get a copy of laws that were in effect at the time the decisions were made.

So -- What did they say, as in the entire condition. Can you scan it? It sounds like all they rated you on was removal of one kidney. What about the cancer? What about the scar? What about the adrenal gland? Did they acknowledge it was cancer? Or did they consider it benign?

I think that is pretty common for most cancer. I am not sure they would grant 100% for the period of time that you are at high risk for recurrence. In fact, I am 99.99999% sure that they wouldn't. Heck! They didn't even give you 100% when you HAD it!!! But you should get 100% from the date it was detected (or in the very least from the time you filed the claim) until you were finished with what they would call treatment -- which I think should include some of the major recovery period.

I guess maybe the considered that the time you were to be rated on residuals? If so -- that might mean your claim for the actual cancer is still pending??

I know Berta has threads on here about having the VA CUE themselves. (which sometimes seems to be handled more quickly than a normal CUE claim). And before you do that -- look through your records and see what you can come up with for when you would consider you finished treatment. I would think it would be more when the doctor released you with the "You are now considered okay..." seal of approval. You could either ask for 100% for that time period - or just ask for 100% -- and see what they come up with -- and appeal for an earlier effective date if needed. Also -- look through the records and see if there is any information in there that would have shown you were entitled to SMC as housebound or needing aid and attendance for a period of time. For a CUE, the information would have to be in the record at the time they made the decision (or within their constructive possession).

It looks like you are past the appeal period then. Maybe you could ask them to CUE themselves. You might also want to mention to the VSO that you certainly would have appreciated him informing you that cancer is 100%. (Try not to cuss when you are doing that...)

Has she diagnosed you with PTSD? She wouldn't say that your depression is secondary to depression. And yes, if your depression is secondary to PTSD it would more be considered a manifestation of PTSD than a condition that is rated separately. But you will want to clarify it with her. Because if she says your depression is secondary to PTSD, she needs to be clear that your PTSD is related to the service. You can't claim a secondary condition that is caused by a condition that is not service connected. So if she is saying that you have PTSD, and that is causing you to be depressed, that would be granted SC, as long as it is connected to the service.

When did they make the decision? Also -- was there any new and material evidence submitted after they made the decision? Even doctor reports?

October 2012 or October 2011? I thought you said 2 years in a previous post. If it was 2012 - you should still be within your appeal period. If not, you probably want to consider filing a CUE claim that you should have been granted 100% for cancer from the initial date of the claim until AT LEAST six months after surgery. It could even be longer -- as they were monitoring you pretty closely, getting follow-up care, etc. So your "treatment" did not "end" the day of your surgery. I would think you were still under some type of what could be considered treatment for some time after that before it changed to just monitoring for recurrence. Also -- I would think they should have considered whether you were entitled to any SMC for a time after your surgery.

Good luck! And remember to get it in writing!

Does your rating decision when they granted the MS state they are considering the IBS to be a manifestation of the MS? Or did they just remove the IBS rating without any explanation?