john999

Get the IME/IMO and appeal that reduction. If you don't fight a reduction I believe it may encourage the VA to try and reduce you again since they may see an easy target. How did they determine that you should be reduced any way? Get an orthopedist to do your IMO if possible. I also have shoulder disability and it got worse when I had surgery on it. No question that a bad shoulder injury can make it impossible to do most work.

My CUE claim is at the Vet Court's website somewhere. Read if you want to get really depressed. I was service connected for what the VA called a "Nervous Condition" and granted a mere 10% rating back in 1973. The VA did not read or include evidence I submitted via my private doctor which said I had a total disability due to psychotic disorder. I believed at the time that the VA had read my doctor's report but had just decided it was overruled by my in-service record or by medical report from VA doctor made while I was in a VA hospital in 1972. I was too dumb to appeal that initial low ball decision. I spent at least 6 years on my CUE and I had good lawyers. I was denied at the Court and tried to get into federal court but was not heard. When you are dealing with old VA cases it is like opening a can of attack worms. The worms attack you most often. There have been so many rule changes over the years. My CUE was sent back once due to the rules being changed between the time I first filed a claim in 1972 and had my first decision in 1973. The VA was using the 1972 rules, so that cost me another year. After you get your TDIU P&T, or 100% P&T then it is worthwhile to go back and try and find a lawyer to help with your CUE. Both me and my lawyer thought that my CUE was so obvious and glaring that nobody could deny it. We were wrong. 40 years of VA rule changes and smoke can reduce most claims to ash.

I guess one thing to do is to file the NOD on your decisions to start appeal process. Once that is started you can file CUE claims. My CUE took about 6 years to be finally denied. You don't want to wait that long if traditional appeal process would be faster. For additional appeal process to really work you should try and get new evidence of existing disability that was first diagnosed in service like your asthma. Berta is a CUE wiz and hard to beat. For lessor beings I would refer to BroncoVet's list of CUE requirements such as the error being "undebatable". This requirement alone can knock down most CUE claims. Undebatable in my case was that no one could even raise a question about my CUE. Any concerns expressed by anyone at the Court of Vet Appeals Hearing about the nature of my CUE made it debatable. That is really a Catch-22. I had a lawyer with my CUE and we both thought it was slam/dunk just due to the fact that crucial evidence was excluded from my initial claim. However, due to having to abide by 1973 rules I could not prove beyond any debate that VA did exclude my evidence . Most lawyers are just not equipped to really argue a CUE claim, and they don't want to do it. The VA has a host of lawyers who do this all the time and they have unlimited resources. However, if you think you have a good CUE file it.

What sort of situation do you need to be in to get A&A beyond Housebound? I am thinking you need to be bedridden, in a wheelchair or in a nursing home. I applied for special housing needs and was denied because although I am housebound I have use of all my limbs. My reasoning was to VA that would it be better for me to fall and end up in VA nursing home, or to help me now to avoid that expensive fate. VA does not care about that. They just refer to rules that are cookie cutter and mindless. VA is set on denial of claims to save money in the here and now. Never mind future savings. This is why they are always behind the eight ball and cannot provide care and benefits to future generations of vets. No one at the VA actually thinks. They just refer to inflexible rules and hide behind them. Of course, if you want benefits from VA you have to obey those rules no matter how dumb.

I did win a CUE claim when I pointed out to VA that they failed to award me housebound status after I received an additional 60% rating on top of the existing 70% TDIU I had for years. With the VA if you don't ask/demand you don't get. I think the VA created the CUE claim to pretend that they wanted a way for vets to challenge past misdeeds and wrong decisions. The CUE language is so restrictive that I really think it should be called "Clerical Error" claims. It is as if you filed a claim for PTSD and the VA changed your claim to a back injury and then denied it. It must be that bad to get the CUE IMO.

Acesup Your CUE sounds so much like the one I filed about ten years ago based on my disability rating as having a Nervous Condition dating back to 1971 when I was discharged from the Army. I was granted a 10% rating for a mental condition based just on my service record and a brief stay in a veteran's hospital. I had what I thought was a great claim that included an IME from my private doctor who said I was totally disabled and suffering from a psychosis due to service in Vietnam. What I did not know was that the VA failed to even look at my IME, but swore they considered all the evidence of record. I was only 21 years old and just trusted the VA to have actually considered all the evidence. At that time the VA did not have to list or enumerate the evidence in the record. When you start to deal with these old claims via a CUE you are not granted benefit of doubt. It is purely adversarial and unless the evidence requires no judgement beyond recognizing a blatant error you may lose. The VA rules and regs. you have to deal with are the regs. and rules that were in effect at the time of your CUE. The VA has come an awful long way since the end of the Vietnam War. I also was slapped with the personality disorder DX just to try and make sure I could never file a claim for disability. I did win on that front and I got my general discharged upgraded to a honorable one and got TDIU based on PTSD/Depression. It took 25 years, but I got there. I lost my CUE based on absurd VA rules in effect in 1973. If I had know how important filing an appeal would be I might have won 100% in 1973.

I understand that only "earned income" can count against SC TDIU. I get some passive income from stocks I own, but the VA has never troubled me about it. You know SSA taxes my check at the 85% level just because I have some passive income. I guess dumb azzes at the VA could confuse passive and earned income to cut off TDIU. For instance you get rent from property you own that is passive income. However, if you actively manage properties then that might be considered earned income. Tricky.

I have long term disability insurance and I have been getting TDIU for 17 years. My LTD insurance check is non-taxable. However, as others have said it could be counted against VA pension I guess. If anyone wants to get a LTD policy make sure it has no connection to getting SSDI or Worker's Compensation or disability pensions. We need more info as Ham has said.

I would file an appeal and ask for P&T and for an increase in your rating for your back. They always tell you not to rock the boat.

The reason I got IU was for 70% for mental health issues. Then as years went by I was DX'ed with DMII and then with PN and CAD and then I got "S" because the CAD was 60% by itself. As long as I keep getting the 100% payment plus the SMC I really don't care because I have been P&T since 2001. I just read the scare tactics every once in a while about some new administration wanting to do away with TDIU for old guys like me. However, just because I am an old timer now does not mean I would not keep working if I was able. I missed the most productive working years of my life due to SC conditions which have only gotten worse over the years. I would need a new disability of at least 50% to bump up to scheduler 100%. Unless I could get it for sleep apnea or a combination of OSA and all the other crap as well.

I know you can appeal a RO and BVA decision on a CUE denial because I did it. I went all the way to Federal Circuit Court. The Fed. Court refused to hear it, but it was a legitimate appeal. John

I would shop your CUE around and see if any lawyer who has done CUE claims in the past and won them will take your claim. You have to file the claim and it has to be denied and then you start the arduous journey of appealing your CUE claim to the DRO, BVA and Court etc. This may take time or it could be decided quickly and you could get your CUE as long as it does not set precedents for future claims. If worse comes to worse I would file the CUE regardless of what anyone says and take my chances. John

What happened to me was that my initial rating decision was made in 1973. The laws about listing evidence prior to 1992 were different and even though it was obvious to any unbiased reader that the VA did not consider all the evidence in the record it was assumed that the VA had the evidence and considered the evidence before they made their decision as to my rating. It my case it was absurd because my doctor who was the only doctor who actually wrote an opinion (IME/IMO) on the case said I was totally disabled while the VA decided I was only 10% disabled. My doctor stated that I was unemployed and unemployable while the VA never even bothered to ask that question. I had a lawyer and I had one of the best and yet because of the law in 1973 I could not prove the VA did not consider my evidence. I was asked to prove a double negative which, of course, I could not do. There were so many things wrong with what the VA did with my initial claim and my rating decision and my appeal rights neither me nor my lawyer could believe that we would lose, but lose we did. I still get angry when I think about my lose at the Court of Vet Appeals and in the Federal Circuit Court. It was obvious that I was the victim of an injustice, but if VA had of granted my appeal then they might have been on the hook for many more dollars because it would have affected a class of vets and not just me. If it were me I might just run my CUE claim by a lawyer to see what he/she says before you start on that road. If you win it would be well worth the 20% you pay the lawyer for actually representing you. In my case my lawyer would have gotten 20% of 30 years worth of 100% ratings because the VA would have had to go back to 1971 when I file the original claim and correct the record up to the year 2001 when I got P&T anyway. My claim is in the Court record and I have read it more than once. I don't look at it any more because it burns me up. My lawyer spent quite a bit of his own money representing me and never got a dime as far as I know. This is why these lawyers shy away from dealing with old VA claims because the VA has a million ways of wriggling out of paying. Anyone who thinks an old CUE is easy to win needs to think again, but I would still try it. That word "Undebatable" was what really shot me down because the VA brought up the idea that the facts in my claim were not "undebatable". One doctor who was not even identified said I was 10% and my doctor who wrote an IME with all the facts enumerated said I was 100% and totally unemployable made the rating question "debatable". Vync….I hope you win and I hope in your case I am completely wrong. Your claim sounds strong to me. John

Did you appeal the 2000 decision in which the VA did not grant your claim? I had a claim that was 30 years old and the VA did not consider all the evidence in the file at the time. The VA Court of Appeals denied my CUE saying the assumption was that all evidence in the file was considered even if it wasn't , so I could not prove it was or was not considered. Very weird decision because it was obvious that the evidence was never considered but the VA said how sorry they were but rules were rules.

If a CUE requires any thought, judgement or debate then it is not a CUE. I had what I and my lawyer considered a black and white CUE and we still lost at Court of Vet Appeals after 7 years. I got an education in just how slick the VA can be and my lawyer does not do CUE's anymore after losing mine. IMO a CUE must be in the same realm as a clerical error. It has to be so obvious from a reading of the regulations that to miss it is just malpractice. My trouble was that a period of 30 years passed between my CUE claim and the original decision allowing for the laws and regulations to be changed many times.

If you have chapter 35 benefits then you have educational bennies and all other 100% P&T benefits. The next thing is to work on "S". If you have IU then you need an extra 60% for another disability to get "S". So "S" needs to be above and beyond your IU rating. Couple of more years and I won't worry about IU or any other benefits besides maybe Caregiver Benefits for my wife, but I hope not. I would like to get a higher level of A&A but I don't want to suffer the disability level to get there, but I am getting there slowly.

So unless you have a single rating for 100% you still get IU even if you had 5 X 70% disorders. I have 70%, 60%, 20%, 4 X 10%, and Housebound (S). I would need a new 50% rating to get to the scheduler 100%, but even if I got that I would still be considered TDIU is what you are saying, right? This is something that our Veteran Advocates should be working on which is to rate all vets with MH disability of 70%-90% bumped up to 100% rating. I have a combined 90%. If you read the actual criteria for 100% for a mental health condition most who have 100% rating for PTSD (for instance) would be inside an institution. A vet with 100% scheduler rating for mental health issue is a complete basket case who is an immediate risk for suicide or homicide and should be in a rubber room. Few of us actually that post here are in that condition. Although, all vets who cannot work due to MH condition are most severely disabled and should be rating 100% scheduler. The criteria for 100% for PTSD is just so far outside person's actual mental health GAF that few relate to that level of mental disease. My gripe is that any vet with PTSD or any other SC mental health condition that makes it impossible for him to work and support himself should be rated 100%. I am TDIU and I can never get 100% for single issue unless I am willing to have myself committed to the rubber room for a couple of months. I am just not up to that and neither is my wife.

VA has diagnosed me with apnea and I forget the exact name but it means you fall asleep without warning and can't seem to wake up normally. Now I am SC for DMII and I have sensory neuropathy in my feet and hands. I am also SC for depression and a host of other MH conditions. Exercising can be might hard to do when I keep falling asleep and waking up not knowing what has happened. Is there a chance of my getting service connected for OSA. The thing that really worries me is falling asleep and not waking up at all. I don't mean to butt in to your thread, but the obesity and the OSA claim seem to be up my alley. I am rated 90% TDIU P&T and HB (S). You know most doctors believe it is not exercise but your calorie intake that leads to obesity. I wonder if there are studies that show that depression and DMII lead to intake of carbs and sugar that lead to obesity that lead to OSA. It seems to me from what I have read that DMII, depression, and PTSD can lead to weight gain and thus to OSA. John

You know if they rate you for Chronic Pain Disorder they treat that as if it is a mental disorder. They lump it in with depression. I can tell you I may be depressed but it is because the things I used to do are just too painful for me now.

Your award should say you have Chapter 35 benefits if you are p&t.

What kills me is the VA has treated me for chronic pain in my lower back left shoulder, hands and feet. They have treated me with opiates including morphine, methadone, Oxycodone and Fentanyl patches. The pain is officially related to diabetic neuropathy. I get 10% for each foot and each hand. If you your hands and feet hurt so bad you have to be on heavy narcotics how can pain not even really enter into my ratings. I am rated for impairment for nerves that run through my feet and hands. No mention of pain or the consequences of pain. All this pain is supposed to be a result of AO exposure but there is really little objective proof except me constantly complaining about it. No doubt I have the pain but I don't think the VA really believes me after me being treated for pain since 2005. John

With the hearing thing get your PCP to send you for a hearing test. Then complain about the constant ringing in your ears. What was your MOS in the military? Did you work around heavy machines or artillery, tanks, infantry etc. You know people can actually lose their hearing after just one exposure to a very loud noise. It happened to a film director during WWII when he was very near a 155 howitzer when it was fired. He did not know enough to cover his ears and lost 40% of his hearing permanently. He was stone deaf for months. You must understand these C&P doctors and your VA claims examiner are suspicious of all vets and probably are thinking you are just after a couple of bucks.

I agree with Berta and Buck. If you get the DRO take your IMO/IME's with you and present them. The more evidence you have the better chance to get what you want at the local level. Be polite and friendly if possible with the DRO. These guys or gals can sometimes make a decision right there to grant your claim in full or in part and save you years of appeals. Just get all the evidence you can get. Make your arguments precise and to the point. If you talk about fairness and how the VA has screwed you for years the DRO's turn off their hearing aides. Medical evidence is what you need and IMO/IME fits that definition. Claims that involve thousands of other vets are unlikely to be resolved locally. A unique claim that pertains to you only and your facts has a better chance IMO.