POA means Power of attorney?
Berta, to answer some of your questions –
No CUEs have been filed on the 2011 Decision. I intend to file for RLS, GERD/IBS and MDD. I should have started with an easier CUE than the MDD. I am pretty sure the RLS and the GERD/IBS CUEs are easily winnable as both are side effects of medication the Veteran had been on for years, and through retirement.
My husband was diagnosed with a serious health issue shortly before his last sign off in 2019 and has had several additional health issues ongoing to current. Since then, he has been unable to contribute to any of the preparation. I have my own trials as well, have a surgery scheduled next Friday that will keep me unable to be on the computer for a couple weeks. No excuses, this is just what has been happening, which is same that happens in most disabled households. Maybe I should have waited until after my recovery to dig into this.
From what I know, Geekysquid provided template help to show proper formatting and method of attack, he did not prepare a CUE that I’m aware of. I believe he wanted to prepare a CUE for MDD because he became angry about something he saw when he read some document my husband messaged to him. It upset him and that is when he said there was a term for what the rater did, that he had substituted his opinion for the doctor’s. I came in on the tail end of that, then Geeky disappear off the scene and that is where things are now. Now I am trying to pick things up where we left off...
I was under the impression the CUE you provided was a template, not the actual CUE to be used for filing. More on this later in this post...
It is confusing trying to find my way around the site. I could not figure out how to find the old posts, so thank you for that link. Now, I need to figure out how to “edit”, so I can upload a couple decisions we have received in 2021. Maybe I could just attach them to this response if I could find the button.
Yes, the 2019 decision did use as evidence a several things that were not available in 2011 decision, ones carrying some weight, I believe, were lay letters from the Veteran and myself. I wrote both letters, and they were quite extensive, but both relied heavily on information I found searching through the SMRs. There were also records from the VA suicide prevention counseling program, but oddly enough, even though they named those records in evidence, they forgot or overlooked the “suicidal ideations” and rated MDD at 50%.
What I would like to do, if you could bear with me, is give you the run down of where we are now, today, so you can see the bigger picture of what’s been going on.
Before I do anything else regarding the MDD/Anxiety CUE for the 2011 decision, I am doing a request for all the Veteran’s mental health records, notes, correspondence etc, to see what the VA actually has and so should have had in 2011. In the 2011 C&P, the Examiner made the statement that the mental health records were kept under separate cover and were unavailable to him, but then he also made specific comments he could have only known if he had seen the records. If I can get my hands on mental health records that the VA had, especially anything pre 1998, it might go a long way toward winning the CUE. The Veteran’s first mental health counseling was a 30 day group counseling program in 1992 for depression and anxiety not long after his abusive alcoholic stepfather died. He would go to work, but instead of working, he would spend the entire day in counseling, every day for 30 days. It was approved by his Commander, but there is no mention of it in his SMRs. But there should be record of it somewhere because too many people had to be involved and sign off to make it happen. I will be preparing that request and submitting it electronically before the end of the week. May take a long time to get the records, but it would be worth the wait.
OK, so to bring you up to current:
The CUEs on the 2019 decision re MDD and GERD were prepared and sent using your template or a combination of templates. They were on the docket, ready to be heard and something told me to take them out and read them. They referred to 2 laws, not just the evaluation of evidence law and from what I could tell, there was no violation of the second law. So we withdrew those CUEs right away because, me not knowing how things worked at that level, I was afraid they would be rejected or ??? because of the second law being included in error. I then prepared them as NODs, or whatever they are calling them these days. The VA lost the NOD submission. So we pulled the first submission back fearing it had been prepared incorrectly, then VA lost the second submission. I prepared a third submission and sent with it a cover letter explaining all the above. The VA received the third submission the end of February 2021. We received verification by phone yesterday that the decision is done, dated 4/30/21 and is in the mail. Whether it be yea, nay or ??? at least we will have a decision on that NOD submission.
In the meantime, in my attempt to get the Veteran recognized for TBI, TBI was recognized at 10% and MDD ended up getting bumped up to 70%, without the suicidal ideations even being considered, and they took it upon themselves (the Examiner did) to go the extra mile ending up with a rating of 30% for IBS and 30% for migraines without us even asking and Examiner also got Veteran approved for SMC for use of creative organ. We had no idea the Examiner was doing this. He was unbelievably awesome. He was with VES, Veteran's Evaluation Services, their motto is Veterans for Veterans and it appears they mean what they say. Now VA has connected absolutely everything possible to the TBI. But they rate the MDD because it is the highest % and to avoid pyramiding.
So now, the MDD is taken care of either way and all that is left is to get the GERD percentage increased to 30% on that 2019 NOD. If the 4/30/21 decision speaks to GERD, that completes what we have been trying to accomplish with the NOD of the 2019 decision. Then all that is left for current is RLS/PMD, and there is enough proof in the SMRs to prove SC for that. Then all that will be left to do are the 2011 CUEs.
I really want to talk about discrepancies in the 2011 C&P Examiner’s report for MDD/Anxiety, to get your input, but including it in the post would make things too confusing, so I am going to stop here.
Also, I just realized I can't figure out how to attach the 2 2021 decisions!!! I'll keep searching this site and when I figure it out, I will post them here.
MARCH 1 2021 VA RATING DECISION.pdf APRIL 29 2021 VA RATING DECISION.pdf