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jacobbree123

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Everything posted by jacobbree123

  1. Just following up on this if anybody is interested my estimated time for completion was 2/10/2020 and that is today so it looks like I am going to go over that time frame. While I filed this CUE as a HLR when I called today and asked if I would be receiving a phone call for a informal conference the answer was no because the claim was submitted as a new claim for benefits listed as a CUE for the dates I specified the error, I had the guy look on the paper work that it was submitted on and it was a HLR asked him to request a answer as to why its listed the way it is on ebenefits. That being said I believe I read somewhere that they do this on some claims to award a earlier effective date. My claim has been in the prep for decision phase since two days after I filed so I am guessing that its waiting on a couple of higher ups to look it over for review and to approve the back pay, this being the best case. worst case it is sitting under some paper work on the raters desk.
  2. I had success recently by keeping it simple I filed a HLR and listed the decision date and put clear and unmistakable error and attached my cue letter with the forum. I faxed it and sent it in as certified mail And a few days latter it was listed on my eben as a cue on the dates I listed with my supporting documents attached. I think this is the best option because it also allows for a informal phone call that you hopefully receive and you can explain your issues to the person actually deciding them. I should have my answer the first week of February and I sent my paperwork in on the 9th of January so a extremely fast turn around.
  3. Okay so updated on this I ended up filling a HLR with the CUE paperwork attached to it and now on eben it sates I have a Claim open for Cue so that is a positive. I do have two questions on ebenafits for this claim there is a request 1 that states Automated 5103 Notice Response is this something they just send because it automated or do they send this because they think i dont have enough information submitted or are requesting specific documents. I called and asked and it just seems like they are asking if i have anything else to submit. Second question is since this was sent with HLR paper work but is now listed as a CUE should i still be looking for a informal phone Conference.
  4. @Berta I called the VA benefits claim number they told me to file a increase on the narcolepsy claim and submit the cue paperwork as evidence on ebenefits. So yes I have where it was submitted with the file and all of the evidence needed. Ill call the white house hot line and see what info i can find. I am thinking though that i file for a higher level of review and see if that helps. My vso even called and said they have accepted the CUE even though she was unwilling to help me file it and gave me quite the run around until the point were i gathered as much info as i could from here and submitted it myself. is there a way to ask for a earlier effective date.
  5. This is a claim of CUE, Clear and Unmistakable Error, Under of 38 USC 5109(a). I respectfully request the VA to call a clear and unmistakable error on the part of the 01/24/2014 rating decision that awarded 10% for Narcolepsy, and the decision letter that was sent on 04/30/2014. 38 CFR 4.2-Interpretation of examination reports. 38 CFR 4.6-Evaluation of evidence The VA decision dated 01/24/2014 for Narcolepsy, and the decision letter that was sent on 04/30/2014 awarded 10% and service connection for narcolepsy. was based on inaccurate and incomplete information; the requirements of the cited laws and VA regulations were not met. 38 CFR 4.2 states in part “. . . It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present in my (Exhibit 1, page 1, Para 1) Military Service Treatment Record /chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” The Va Rating decision dated 01/24/2014 demonstrates no consideration of this vital information. 38 CFR 4.6 states in part “. . . Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.” in my (Exhibit 1, page 1, Para 1) Military Service Treatment Record /chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states in part “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” The Va Rating decision dated 01/24/2014 demonstrates no consideration of this vital information. 38 CFR 4.6 States in Part... equitable and just as contemplated by the requirements of the law. Under Federal law 38 CFR §4.124a, condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. Under 38 CFR Condition 8911 Epilepsy, petit mal is rated under the general rating formula for minor seizures. Attached is paperwork from my (Exhibit 1, page 1, Para 1) Military service treatment record/chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” 38 CFR Condition 8911 Epilepsy, petit mal. States A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). These errors have manifested a detrimental outcome. If the 5-20 witnessed Narcoleptic attacks, hallucinations, paralysis, extended bout of reported unconsciousness, rhythmic blinking, loss of control of body, and all the reported conditions and medical evidence was taken into consideration a rating of 80-100% would have been put into effect. Where I believe that the higher rating of 100% is warranted. The decision made was improperly based one the evidence available at the time and the rules of rating narcolepsy that were in effect. The VA's did not consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision referred to above. If the Narcolepsy claim was evaluated after review of all the evidence according to all va requirements. The VA decision dated 01/24/2014 for Narcolepsy, and the decision letter that was sent on 04/30/2014 that awarded 10% and service connection for narcolepsy. it would have increased my rating from 60% to 100% at the time of awarding. There is some more info I left out but pretty much this is the gest of it and they awarded 80% this time siting more than 10 narcoleptic episodes a week from my current C&P exam that I had last month. the issue is they gave me a whole new service connection now i have two ratings for narcolepsy and they totally ignored the CUE.
  6. @Berta I have been fully self employed almost the entirety of my time after the military the reason I flied a cue is because there was medical evidence the va had at the time in 2014 from my chronological record of medical care from the Minot AFB. Showing a Doctors statements of experiencing narcoleptic episodes more than 10 times a week. which warrants the rating of 80% for narcolepsy. I submitted all of this information with the claim and my cue letter, but unfortunately it seems it was ignored. I have been trying to figure out the next step because i thought CUE was the correct answer to the situation. I am thinking I need to request a higher level of review or maybe i filled for CUE incorrectly.
  7. Well its for a service connection that I received in 2014 where i was awarded 10% for narcolepsy but under the rating code I should have been Rated at 80% at the time. So I filed for an increase and submitted a CUE letter in my supplemental documents, they of course ordered another C&P exam of which i gave the same exact statements as where in my CUE letter. Longer story short they awarded 80% but only to the date I filled for increase and instead of putting it with my original rating for narcolepsy i now have Two separate rating for narcolepsy one for 10% and one for 80%. So I am confused on what to do next in order to receive the back pay date. I feel like they want me to be happy with the rating and hope I cant find the other hoops they want me to jump through. BTW I contribute the successful 80% rating to all the info i found on this forum from @Berta
  8. What VA forms or persons do I need to fill out or contact to submit a CUE.
  9. Third Draft let me know if its getting better or what else needs to be added or changed. thank you everyone for the help so far wish the legend @Berta could weigh in on this, but I know she is probably busy. This is a claim of CUE, Clear and Unmistakable Error, Under of 38 USC 5109(a). I respectfully request the VA to call a clear and unmistakable error on the part of the 01/24/2014 rating decision that awarded 10% for Narcolepsy. The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the initial rating percentage of 10%. I have Cited the specific errors down below 38 CFR 4.2-Interpretation of examination reports. 38 CFR 4.6-Evaluation of evidence MR-21-1, Part III, Subpart iv, Chapter 5, III.iv.5.A.3.e. Basis for Rejecting Medical Evidence 38 CFR 4.2 states in part “. . . It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. The rating examiner failed to apply this section of Federal law because they failed to consider the finding listed in my chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” (Enclosure Page 1, Paragraph 1 Highlighted). 38 CFR 4.6 states in part “. . . Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.” The examiner failed in to apply this Because under Federal law 38 CFR §4.124a, condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. Under 38 CFR Condition 8911 Epilepsy, petit mal is rated under the general rating formula for minor seizures. Attached is paperwork from my chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” 38 CFR Condition 8911 Epilepsy, petit mal. States A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The second document in reference is the Narcolepsy DBQ completed on April 11, 2014 it states “Has Sleep attacks every day. Does not drive” then under symptoms it lists excessive daytime sleepiness, Sleep Attacks, Sleep paralysis, Sleep hallucinations All of these are marked as yes, but immediately following this under Indicate frequency of cataplectic (narcoleptic episodes) (check all that apply): Number of cataplectic (narcoleptic) episodes over past 6 months: [X] 0-1 [ ] 2 or more Even though the patient statements, and medical evidence that was provided by the patient shows (narcoleptic) episodes happen daily 5-20 times. Following this section, the narcolepsy DBQ states Has the Veteran ever had major seizures (characterized by the generalized tonic-clonic convulsion with unconsciousness)? [ ] Yes [X] No d. Has the Veteran ever had minor seizures (characterized by a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal) or sudden jerking movements of the arms, trunk or head (myoclonic type) or sudden loss of postural control (akinetic type))? [ ] Yes [X] No Provided Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. With the provided evidence “chronological record of Medical care” “Narcolepsy DBQ” that is referenced about both boxes should be marked yes. These errors have manifested a detrimental outcome. If the 5-20 witnessed Narcoleptic attacks, hallucinations, paralysis, extended bout of reported unconsciousness, rhythmic blinking, loss of control of body, and all the reported medical evidence was taken into consideration a rating of 100% would have been put into effect. The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision referred to above. if the Narcolepsy claim was evaluated after review of all the evidence on the Decision Letter dated 01/24/2014 it would have increased my rating from 60% to 100% at the time of awarding. Respectively submitted,
  10. Is this better? This is a claim of CUE, Clear and Unmistakable Error, Under of 38 USC 5109(a). I respectfully request the VA to call a clear and unmistakable error on the part of The 01/24/2014 rating decision that awarded 10% for Narcolepsy. The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the initial rating percentage of 10%. With respect to the rating of Narcolepsy, the Court has held that the Board must consider the application of 38 CFR §4.124a Schedule of ratings—neurological conditions and convulsive disorders. Also there may be service records that warrant reconsideration under 38 CFR 3.156(c)(1) That provide clear and undeniable evidence of a higher Rating. If said records were present at the time then under 38 CFR §4.6 Evaluation of evidence every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board. provisions of 38 CFR 3.105(a) state that a CUE will fall into one or more of the following. Under each I will reference each referance evidence for the following CUE 1. the decision maker failed to apply or incorrectly applied the appropriate laws or regulations. Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. Under 38 CFR Condition 8911 Epilepsy, petit mal is rate under the general rating formula for minor seizures. Attached is paperwork from my chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” 38 CFR Condition 8911 Epilepsy, petit mal. States A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The second document in reference is the Narcolepsy DBQ completed on April 11, 2014 it states “Has Sleep attacks every day. Does not drive” then under symptoms it lists excessive daytime sleepiness, Sleep Attacks, Sleep paralysis, Sleep hallucinations All of these are marked as yes, but immediately following this under Indicate frequency of cataplectic (narcoleptic episodes) (check all that apply): Number of cataplectic (narcoleptic) episodes over past 6 months: [X] 0-1 [ ] 2 or more Even though the patient statements, and medical evidence shows (narcoleptic) episodes happen daily 5-20 times. Following this section the narcolepsy DBQ states Has the Veteran ever had major seizures (characterized by the generalized tonic-clonic convulsion with unconsciousness)? [ ] Yes [X] No d. Has the Veteran ever had minor seizures (characterized by a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal) or sudden jerking movements of the arms, trunk or head (myoclonic type) or sudden loss of postural control (akinetic type))? [ ] Yes [X] No Provided Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. With the provided evidence that is referenced above both of these boxes should be marked yes. If the 5-20 witnessed Narcoleptic attacks, hallucinations, paralysis, extended bout of reported unconsciousness, rhythmic blinking, loss of control of body, and all of the reported medical evidence was taken into consideration a rating of 100% would have been put into effect. The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision referred to above. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. 38 CFR 4.6 If the Narcolepsy claim was evaluated after review of all the evidence on the Decision Letter dated 01/24/2014 it would have increased my rating from 60% to 100% at the time of awarding. Respectively submitted,
  11. I am very confused on this situation and was wondering if this seems like i should file a CUE and what i should do or if there is regulations laws i should quote when i submit one. I received my Original C&P exam for Narcolepsy on April 11, 2014 at 10:30am and I feel that the form is intentionally used to discredit and set me the veteran for failure, and lower rating due to not explain to the C&P examiner and the patent that the sleep attacks and other symptoms I was experiencing from (Narcolepsy) is generally rated under diagnostic code 8108 which provides that the disability be evaluated as petit mal epilepsy. Petit mal epilepsy is rated under general rating formula for minor seizures per 38 C.F.R. The new and current Narcolepsy DBQ is different from the one i was given in 2014, and does not mention anything about the relation to a seizure disorder. Also, in the section where it says cataplectic (narcoleptic attack) It is not specified the separation of the two different aspects of narcolepsy. cataplexy is defined as the sudden loss of muscle tone while a person is awake and leads to weakness and loss of voluntary muscle control. A Narcoleptic attack is a bout of extreme day time sleepiness that can last an undetermined amount of time and can cause you to fall asleep. At the time of the exam in 2014 I believe I was not asked about cataplexy or (narcoleptic attacks) both were glossed over even tough in my military records it shows a doctor statement from 27 Nov 2013 at the 5th medical group at Minot AFB, and I quote “The sleep study did diagnose narcolepsy. Patient Falls asleep frequently during the day, ranges from 5-20 times per day.” If you are to review narcolepsy under the current and past C.F.R code. After having a MSLT and a PSG test were doctors monitor you through the night and day this can be interpreted as witness seizures, the doctor at Minot AFB further confirmed this with his statement. Narcolepsy can greatly affect daily activities people may unwillingly fall asleep even if they are in the middle of an activity like driving, eating, or talking which I have. So, under the current and past C.F.R code for narcolepsy Rated under the general rating formula for petit mal seizures states the following. Note (1): A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. Note (2): A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). General Rating Formula for Major and Minor Epileptic Seizures: Averaging at least 1 major seizure per month over the last year 100 Averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. The statements made and the evidence provided at least qualifies for a rating of 80%. On the C&P exam on his statement it says patient has sleep attacks and under patient statements it says daily so I know for a fact i told him how many it was a day. The page that says 5-20 a day is the first page in my military chronological record of medical care. I am unaware if the ones he had at the time contained this information, or if he saw it and chose to ignore it and not take it into consideration, or he was unaware what a narcoleptic attack was. I believe that there is a clear and undeniable error that the C&P examiner marked the wrong box for the C&P exam under symptoms section B Stating I only have 0-1 attacks every 6 months. The evidence was clear and indisputable and not under interpretation by him because it was a matter of fact.
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