Snake Eyes

We went through an extensive review and revision process to ensure all medical issues were covered and we also discussed the CUE language. It was clearly written as part of the IME nexus letter and I was not advised to separate the CUE language from the rest of the letter before the final draft was submitted with the claim. What's done is done and we'll have to wait it out and see how the VA rules. If Dr. Bash is now advising vets to separate the CUE language, I think that's a good thing. If a client takes the CUE language out in the editing process, I'm sure he 'd be supportive. In my case, I did 't see Asknod's message until the claim had already been filed. Thanks to all for making this a useful and informative thread.

SSDI approved. The case worker wanted to schedule an appointment to apply for family 's benefits.

Good point about the overactive pie hole... At a C&P exam, the doc tricked me into describing things I did beyond work that could help me on my job. That turned a 10 to 20 hour part time contract into ac50 hour a week full time job. Fixed it, but I'm more careful now :-)

FWIW, Dr. Bash is pretty well known in VA circles as a doc who does not write nexus letters on contingency. He gets paid the same no matter how favorable his comments in the opinion may be. Hopefully, his noticing the alleged CUE and commenting on it won't cause the VA to throw out all other contentions. The base claim is TDIU and the rest is medical issues that, if rated, would increase my schedular from 90% to 100%. The CUE is really an asterisk in the grand scheme of things. On the FDC claim app, I list all the issues and on the line for the TDIU claim I made a note that Dr. Bash discovered the CUE. My VSO saw that and seemed OK with it.

The case worker is really upbeat and calls herself "Hope" -- she says, because she likes to give her clients hope. :-) I'll be in her neck of the woods Monday so will try to connect and get the documents too her. Maybe she can clear up the mystery then. Meanwhile, I'll have all the birth certs and our Wedding cert just in case any of those are needed. Better to be prepared just in case.

Interesting perspective. Dr. Bash has done these before and I'm sure if he had blowback, he would have simply provided the language and advised me submit the CUE separately. If we get the response Content Contributor expects, I'll be sure to post it here -- along with the VA's explanation -- as a teaching point for others. Thanks for your insight.

I got a mysterious phone message from the original case worker who said she had "information about your claim and I need a birth certificate from one of your children". Since it's a Friday after local SSA office has closed, I'm curious about a few things: 1. Does the original caseworker call applicants to let them know a claim has been approved or denied? 2. Would they need children's birth certs for a claim that has not yet been decided (or has been denied)? Neither of my kids are applicants, so I"m guessing they would need that in case I receive an award and want to apply for benefits for my wife and kids.

Just curious.... is the "much nicer" one more effective than the "go CUE yourself" one? :-) Thanks for sharing.

Thanks. Already had my consultative exams. She was referring to the DDS doctor. Congrats on getting an answer so soon. Mine ws submitted in June.

The other day, I called the DDS person who sent me SSDI development letters to ask about a statement on Social Security's Web site that they requested documentation from me (an "amended application"). She checked my file and said they had all they needed -- no "amended application" required. I asked about the status of the claim and she said they were almost done with it -- "It has been sent to the doctor" was all she could (or would) say. When I asked how long it stayed with "the doctor" before a decision is finalized, she said, about two to three weeks. Just to DEMYSTIFY her response, should I take it that if it were approved she would have simply said so? When I asked, she simply deferred to "the doctor" without any detail. I've seen posts on other boards saying you should stay in touch with your DDS examiner as they will keep you up to speed on the status of your claim (and the contact gets your claim back in their consciousness).

Hi Berta, VSO didn't recommend filing the CUE during the NOD period -- it was part of the FDC I brought to him to file -- but he seemed to think it was a good idea. As far as Dr. Bash doing a CUE analysis in his IME/Nexus letter, that was not a stand-alone thing. The text below is part of a lay statement I submitted with the claim pointing out the CUE and unfortunately, if I understand your post above, I failed to specifically ASK for the VA to CUE itself. What do you think? It seems to me that the combination of this statement and Dr. Bash's specific statement ("The previous rating contains CUE as follows:..." with his analysis and statement of the law should be a clear request for the VA to either CUE itself or an effort to amend my TDIU claim with a request to consider it a CUE claim. I'm fairly new to this concept though I've read a lot about it -- learning a lot from YOUR posts. Unfortunately, like many here, my knowledge began to grow AFTER the damage was done :-) Thanks again for your participation. I may be seeking your advice again if this results in a "Nuh uh!" from the VA.

As stated above, the claim was adjucated and I was awarded the ratings mentioned above. However, it has not been a year since my award. Yes, under marginal employment since 2011. Unemployed now. VSO sent the TDIU claim and a CUE statement from Dr. Bash, along with my diabetes claim. Thanks, all for your help.

I was thinking the same thing. On the FDC form I note that a CUE is identified in the IME and also provided a separate lay statement explaining that my financial statement that was not considered was in the VAs possession before a DBQ that they did consider. I'm thinking all the bases are covered... Good luck on your claims as well.

Berta, Basically, what happened is that I met the schedular requirement in the VA's rating of my claim AND I submitted a statement in support of the claim to the effect that I was not gainfully employed. The working conditions I cited were related to issues that surfaced in my psych C&P exam. Since I was filing for TDIU anyway, when I pointed the statement out, he considered it to be a CUE -- and addressed that in his IME letter. Thanks for all you do for vets.

The IMO is for HTN and diabetes with complications. He addressed TDIU from a medical atandpoint and a CUE for non -inferred TDIU based on the facts at the time my original claim was decided. He did all that in one letter.

Thanks, Gastone. Yes, all income under $12,00 BEFORE taxes and I was self-employed. It is in the Gathering evidence stage and I've not sent anything since starting the claim informally by phone in June. I should have DBQs from Dr. Bash's exam this week -- and all of the FDC will be submitted by my VSO next week. I'm afraid to separate them since Bash's IME/Nexus letter addresses all issues, including the TDIU and the CUE. If I separated them, the VA might have an excuse to deny one if I submit Bash's letter twice. I'm hoping my VSO has dealt with this kind of thing before. FWIW, I 'm a service-connected worrier :-)

Thanks for the info. I have another possible issue. When I opened the claim by phone, I talked about severl issues. When CSR suggested making an informal claim via that call, it looks like he only did it for TDIU. Will there be issues with the fully developed claim if the phone rep only listed TDIU? I know it might affect the effective dates of the non-TDIU issues, but would it cause a problem otherwise? Dr. Bash's IME letter addresses all issues and not just TDIU.

Thanks to all for the recent replies. It appears some folks here misunderstood my intent -- I do not intend to work with or without TDIU. I had to quit work this summer and have since applied for SSDI. The question had to do with whether the VA should have considered a statement submitted to show my employment status as an implied request for TDIU consideration. In other words, in the context of a TDIU application (or inferred TDIU claim), what is considered "work".... Berta, Thanks for your response on the Dr. Bash "catch". If it is indeed a CUE, that would be great. I've heard CUEs are next to impossible to prove, and this one hinges on the VA recognizing that a document I submitted shows marginal self-employment. Unfortunately, the VA did not list that in their award letter. I remember faxing it but the date was incorrect; my VSO said at the time that he signed the original and submitted it to the VA for me. We're trying to track that down now. Which brings up a question: IF the VA received the document but didn't review it (maybe they had my claims file somewhere else when the document came in, for example) does it still "count"? I would think if it was received during the "gathering evidence" phase, they should have reviewed it with all the other stuff in the file.

Filing a new claim that also includes a formal TDIU request.... In my original claim, I provided a lay statement showing I had marginal income for the past three years and listed the number of hours I did various activities related to my contract with an online school. My hope was that VA would see the marginal income statement and infer a TDIU (this was before I discovered you can actually file a TDIU claim). There are a few questions that come up because of the kind of work I did. The C&P shrink stated, "He is able to function on this job because he is required to interact with others online only". That should be seen as a work limitation IMO since there are very few meaningful full-time jobs that are "online only". Combined with the sleep apnea (fatigue and daytime sleepiness documented in DBQ and sleep studies), it should be obvious I can't do a triditional desk job "out there". So what is considered WORK? When I was working, I was well within the range of "marginal employment"... So, if you're actually only working 13 to 22 hours weekly, is that work for TDIU purposes? If you put in an additional 20 hours sporadically trying to find additional opportunities, is THAT considered work for TDIU purposes? For the current TDIU claim, it should be a moot point since I'm no longer employed at all... Dr. Bash thinks there might be a CUE in the original claim since they did not infer based on a 70% and a 50% rating (the higher one is for GAD).

Good points, John.... Dr. Bash's approach is to demonstrate that a combination of stress, anxiety and my SC physical issues caused weight gain leading to Diabetes II -- OR -- as secondary to hypertension and sleep apnea. Most of the etiology and evidence he's providing supports his "OR" conclusion. His etiology is VERY similar to that used in two cases that were won at the BVA showing diabetes was caused or aggrivated by sleep apnea. It should be interesting.

I may have to try for the denial at a later date when there is more "evidence" in my record. The counselor stated essentially that while it "LOOKED" like Voc Rehab would be infeasible for me, the determinative SC disabilities only had VA P&C reports and a few related reports from in service. In other words, he was concerned that the record was "too thin" to conclusively state my program was not feasible. HOWEVER, when you read the narrative on his report, it's almost as if he checked all the boxes, dotted all the I's and crossed all the T's to justify denial. He was very clear that he didn't think it would be feasible but that he didn't have enough evidence to prove it.... so his strategy was EITHER continue with the program and eventually be turned down or be discontinued with the option of trying again once my disabilities disappear. Not sure, but I think this guy was a little off :-)

UPDATE: We hope to submit the final FDC plus a TDIU claim early next month. In the process of gathering evidence, we uncovered a five year study that coincidentally was funded in part by the VA and used VA patients as study subjects. [The rating officer says, "D'Oh!". I'll post a link to that one for anyone pursuing this etiology. In my favor is the fact that in addition to sleep apnea, I had other factors of metabolic syndrome (other than diabetes itself) in service. Once Dr. Bash has finished his letter, I'll post the relevant sections showing the etiology of sleep apnea -->> diabetes. This will be a fully developed claim, so hopefully we'll know before Jesus comes back whether this approach works -- and I'm hoping many other veterans will benefit from this research/claim process. VA Funded study identifying sleep apnea as a serious risk factor/cause of diabetes here.

Hi Pete, Thanks for the warning to appeal within 30 days. Unfortunately, I passed that deadline -- but the good news is I'm still entitled to Voc Rehab IF I can prove I've overcome the disabilities Voc Rehab is designed to help me overcome . The Voc Rehab counselor came back from leave and sent me a copy of his final report. It was worded exactly as you would expect if it was a denial but the "Feasability" section was marked "Uncertain" and the entitlement remains. Dr. Bash said we should include the counselor's report wording in his IME letter in support of the TDIU request as the counselor clearly justified a "Severe Employment Handicap" citing two of my service connected disabilities as "severe" -- and then listed the other three (10% each) as "Severe to moderate per veteran". What actually was said was the knees and ankle were moderate and the back pain was severe. Nevertheless, a discontinued due to inability to complete the program because of SC disabilities has the magic words Dr. Bash needed for his letter and that I need for any future appeal.

Good luck.... I look forward to seeing how it works out.

Ditto. Beyond how knowledgable and successful he is, he also genuinely cares about the vets he serves.