livingrock21

Congrats!! It's great hearing news like this! So did they CUE them selves with out you asking? If so, that's outstanding.

I've been doing more research. By law their(DOD, in my case the Navy) is required to do an evaluation while I'm on the TDRL every 18 months. I can't fint anything that states what happens if I'm not evaluated within those 18 months. If it's like anything else, the DOD is not held accountable. Funny thing is, if a member doesn't show up to one of those Re-Evaluations benifits are terminated on the spot. This isn't right. I'm willing to bet that if the PEB would try to find me as either 20% disabled or find me fit(don't see that happening, but possible), I could use this in my favor(if I got a lawyer and tried to beat it). I'm just wondering if anyone out there has any information on this? I've calmed down a little bit, but this is still unbelievable to me.

Purple, What happens if I don't get re-evaluated? Lol, I guess that's the question. They can't lower me to 0% without re-evaluating me. Also, I have multiple copies of my SMR. Lol, I took the advice from some old salt dawgs while I was Limited Duty, and made copies and kept them current while I was active duty. Learned from the mistakes. Actually, at one point, my SMR was lost until I told them, well it's okay. I have a copy. Then it magically re-appeard. Lol. Funny how things like that can happen. Ones SMR disappears until it's found out that the Service member was smart and kept records. I'm so stressed. I have anxiety, and PCP has me on some kind of anxiety/depression med. I think I'm going back here very soon and asking her to put me on Xanax. That's the only thing that's going to calm me down at this point.

Thanks for the information RockHound. I'm fluttered at this point. No one can tell me exactly whats going on. I can't get a hold of my VSO now, and he wont be back until Wednesday. Their telling me that my folder is still at the RO. Since I'm on my third and final appeal though, my claim has to go to the BVA? Correct? Once again, I think my VSO BS'd me. He said he was going to try and keep my folder at the RO? Why would he want this? Also, this isn't possible is it? It has to go to the BVA, unless a formal DRO hearing is scheduled with my RO?? I called the 1-800 number and they said the DRO there had my folder. Why would he have my folder if it had to go to the BVA? It also says they recieved the SSA information I sent them. The fact that I'm recieving SSDI for the same SC, and the fact that they only used my SMR to evaluate me(didn't even get evaluated by SSA doctors). I'm leaving stuff out. There's other things about my Appeal I'm concerned about. I know I should be CUE this, but don't know where to start with out my VSO. Not sure what the basis should be(there are multiple mistakes conducted by the VA). AGGHH! I don't know what I should be doing, who I should be talking to.. I feel like my claim is a mess. Don't know what I'd do with out you guys. You guys are the only thing keeping me sane!

Purple, The info is greatly apprecaited!! I don't have a base near by. Closest base is the Naval hospital in Bethesda, which is over 2 and a half hours away. I just got a hold of NPC(Naval Personnel Command). I'm wondering if that was a good thing or a bad thing. They didn't even have me in a que to recieve orders, now I'm going to get some. I just wonder if I didn't shoot myself in the foot though. I may have gotten away with just being placed on the PDRL, but not am going to get re-evaluated. Thing is, it was to my understanding that under the SECNAV direction a person on the TDRL was to be re-evaluated within 18 months. The woman told me it'd be atleast a month until I recieved orders which would push me to 19 months. I'm just wondering what the consequences are of not being re-evaluated in time. I thought it meant automatic placement on the PDRL???? Not sure though. I'm very confused.. ---EDIT-- I have a wife and daughter. Why would I need records of them? They were also dependents while I was active duty, so their already in the DOD Deers system? Were you refering to me possibly getting married or having a child since I've been retired??

Yeah, I'm on the TDRL. They lowballed me the first time, but was told by a lot of people not to fight it because they could actually lower that original percentage. It's close to 18 months, less than a week away. Don't they have to send me orders, and ask me to get all records and stuff. They'd hardley be giving me ample time for this. I'm actually really concerned. With my condition it's either 0%, 30%, 60%, or 100%. They can't lower my percentage by 10. They'd have to say I'm either completely better, or atleast keep me at my current rating. I'm not better by any means and have the medical evidence to prove it(though I'd have to get it from the DR.'s). Just not sure what step to take. Less then a week and a day before I should be re-evaluated??????

I just started thinking last night... Ontop of all my VA problems, I started thinking about my medical retirement from the Navy.. Now I was retired the end of august 07. There supposed to re-evaluate you within 18 months from your retirement date. It's comming up on 18 months and I haven't recieved any orders or anything. I don't know if I should be contacting someone, or if this is a good thing. I was lowballed by the DOD on my retirement also. I'm wondering if their just going to try and put me on the PDRL at my current rating of 30%, and not re-evaluate me. It was to my understanding that if they didn't re-evaluate then they automatically put a person the PDRL from the TDRL. Hopefully someone can help me. I can't get a hold of my VSO at this point, and I'm not sure who else to contact. I have about a week until the 18month point. I'm kind of stressing about this!

John and Ricky, Thanks for the great info guys. Rockhound, Maybe your right, but what we were talking about basing the CUE off of makes perfect sense. You can't change the diagnosis especially from one body system to another with out changing the percentage. If you look at the rating criteria, their two totally different animals. Also, I wouldn't have to base my CUE soley off of this. I could base it off the fact that every time I sent in an appeal letter(have copies along with fax confirmation) they were for reconsiderations, not NOD's. In none of them, anywhere, did it state Notice of Disagreement. As a matter of a fact, I never used the words Notice and Disagreement. Yet, they put it in their system as such, which obviously takes longer then to reconsider the original claim. There were a few other things I felt I could base my CUE off of, but these would be the best. I have to do something at this point. My VSO decided on his own(he was supposed to be doing something else, pretty much convinced me he was going to be working a miracle for me) to put in for a whole new claim. Rockhound, Another thing, if you look further down, at the case I posted, it clearly states... "[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE denotes "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." If you seen the evidence, and their decision to keep me rated at 30%, you would say the same thing everyone else I showed the evidence said. It's black and white, there is no grey area. I just have to figure out which route I'm going to take. I'm heading there tomorrow to take care of business. Everyone, Hopefully I'll get some more advice before I leave tomorrow to head down there. You guys really have been great!

Thank you jbasser!!!!! Your awesome! Any other insight on any of the other questions? Anyone?? I'm so appreciative of everything and anything anyone has to say. Positive or negative. This forum really is the greatest! Once again, thanks to all. ----------------- I may be taking a trip down to the VARO tomorrow and viewing my C-file, talking to my VSO(possibly changing), and asking for a CUE. Are CUE wait times usually shorter than a normal NOD? Anyone think I may have a chance with this hardship? I could possibly file a CUE and hardship.?

Jbasser, Here's an excerpt from what I was talking about. It's regulations I believe actually taken from a BVA hearing on a CUE. ".... The United States Court of Appeals for Veterans Claims (Court) has consistently stressed the rigorous nature of the concept of CUE, stating that "[c]lear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE denotes "errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313 (1992). "It must always be remembered that [CUE] is a very specific and rare kind of 'error.'" Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A disagreement with how the Board evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A finding of CUE "must be based on the record and the law that existed at the time of the prior . . . decision." Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992). Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Moreover, the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). ...." Am I misinterpreting the information here? I was looking into the hardship cases a little more. I think maybe I could use this in my favor also. Here's another excerpt from another post on expiditing due to hardship. The qoute is from spike. Four Ways to expedite a claim for Hardship.... " 1. Proof of financial hardship (extreme cases) 2. Age 70+ 3. Terminal Illness 4. Homeless -------------------- -Spike- Vet Advocate --------------" 1. I'm homeless(staying with family, if they decided to boot me at any moment I'd be on the street. I can't afford a place to live). 2. Can hardly pay bills. Help please. I don't know what I would do with out you guys. Like I said in my first post of this thread, my VSO is useless. I thought maybe he was a winner(promised to get my claim reviewed by STAR, ect.), that was a real misinterpretation. LOL. You guys really are great. I appreciate all the help thus far.

jbasser, Thanks for the quick response. Would you happen to know what regs I would want to take to the RO with me? I'm planning on going to the RO here very soon and review my C file anyway. I called the 1800 number(can't call the RO directly anymore), and asked them to set up an appointment for me to go down and view my C file, they said it wasn't needed. I guess only certain RO's require appointments. Sorry for being so niave as to the direct regulations. Also, I'm going to try and find that post that had a particular CUE claim that was filed before the final decision. If I find them here soon, I'll edit and put in a link.

I posted here about a week and a half ago. Here's my prior post : http://www.hadit.com/forums/index.php?show...hl=livingrock21 . I'll give a quick run down on my situation again. I filed my claim in June of 07 through the BDD program. Was supposed to get my findings 90 days after that, but didn't get them until the end of Nov 07. I imediately noticed that they rated one of my conditions under the wrong VASRD code. They had me rated for Paralysis of the median nerve, and I'm supposed to be rated under Erythromelalgia (7119). Two comepletely different things, that aren't even medically related. I appealed a few days after getting my original findings. The statement of the case that I got from that was denied. Appealed again, this time they partially granted it. They agreed they messed up on the DX, but didn't change the percentage like they should have. I'm on my final appeal now. I know it could take years before I get results now. There are a few reasons for CUE. The main reason obviously being the fact that they rated me improperly to begin with, and both conditions have different rating criteria so how could the percentage stay the same. Also, every time I appealed, I filed for reconsideration. I sent in formal letters. No where in the letters did it say I wanted to file a Notice of Disagreement. Clearly stated that I'd like them to reconsider my claim. I was under the assumption that an appeal had to be closed out before one could ask for a CUE. I read a case earlier that proved me wrong. My questions are: - Does everyone think I have a pretty good basis for a CUE? - What's the average wait time for a CUE if I can keep my claim at the RO? - Any other ideas? Another quick question. What's the criteria for a hardship(getting a hardship to move your claim faster)? People that read my other thread, I thought my VSO was actually doing something to help me. He said yeah, send in your evidence(SSDI qualification letter stating conditions). Keep in mind there's alread a FORM 9 NOD in for me right now, he decided to open a new claim for increase. Yeah, that's really helping things. HAHAHA. All it's doing is slowing things down. Thinking about switching VSO's from the VFW to the DAV. Any opinions on that? Thanks for the help in advance everyone. You guys give such great information!

John, This is so sad that us vets are treated so poorly. You've been given some great advice on here, I'd def. take one of those avenues. Maybe if I tell you a subpar VAMC treatment story it'll help, lol. I've now been trying to get in with the pain clinic at the VAMC for a year now. I had an appointment with them over a year ago. When I was in my appointment, they noticed my blood pressure was high, and my heart beat was tachy. Next thing I know their calling a code blue on me, and there's 20 people in the room. I told them I was nervous. The reason I was nervous is because I wanted to finally be out of pain. I was getting pain meds while active duty, but wasn't adequately treated, and the dr. even admited it due to the nature of my job. So, I've been getting the run around from the pain clinic, rheumatology, and my primary. All of them saying I have to be seen by the other for the past year. Tell me somethings not wrong here. I've been in severe pain every day for the past year, and they dont give to S*%#'s. I'm wondering if I can't file a malpractice lawsuit? Hopefully my poor treatment makes you feel a little better knowing that it's not just you that's getting screwed. I know it makes me feel a little better sometimes hearing stuff that's worse than my case just for the simple fact it feels like it's me against the VA.

Any other thoughts on this? Thanks again for the help thus far..

jbasser, This is where it gets kind of goofy.. Lol.. I honestly dont remember sending/faxing/ect a form 9. I do believe I'm on my last appeal for this claim. The first statement of the case was the original. Then I "appealed" that, it was supposed to be a reconsideration. That got denied. I "appealed" again, also supposed to be a reconsideration. I have the letters I sent with reconsideration in bold letters at the top with no mention of appeal in it. The second appeal was partially granted. They agreed on the dx code, but didn't change the percentage(which is also kind of funny, when I call the 1-800 number to this day they ask if I'm talking about the original dx they had listed). Now, I can't remember if I sent another "reconsideration" letter, but they said I sent a form 9. Which I def. don't remember doing. lol. So, to answer your question, I guess I sent in a form 9. Atleast according to the VA I did. I was never asked if I wanted a BVA court hearing, or a DRO conference. I'm not sure what the next step is because no one can really tell me what process I'm in. Like I said, when I called the 1-800 number friday, I actually called to see if my SSA evidence was recieved(faxed it in, have the confirmation page). For S#US's and grins, I decided to ask about the status of my claim. They then told me my claim was in Pittsburgh at the Appeals Management. I wish I would have gotten more clarification. My VSO is supposed to be doing something with my claim. He made it sound like there was something right there in Pittsburgh like a STAR review, and he was going to take my claim there. That's why I was wondering about the Appeals Management. Could the local DRO's manager be looking at my claim? Also, when I asked the 1-800 rep if this "appeals management" could make a determination on my claim he said yes. So, at this point, I'm very confused. I don't know what I should be doing. I don't know who I should be talking to. Nothing. I'm not sure if I should be trusting of my VSO. He def. seems like he has great intentions on helping me, but as far as him really helping, I'm unsure. Any input, opinions, ect are greatly appreciated! Thanks for all the great help so far everyone. Thanks again jbasser for the information thus far.

:P :( B) AAHHH! Sorry about that. Thanks for the quick reply. I could have swore he said my folder was in Pittsburgh at the appeals management. So if it's with the appeals management, then it's in Washington. There's no possible way it's still in Pittsburgh? Is that how it works, if the DRO can't make a decision on it, it goes to the AMC? Any more info?? Thank you for the quick reply. I know it wasn't really one I wanted to hear, but thank you.

Anyone know what the guy was talking about when he said appeals management? Are they over the DRO? Thanks for the help in advance.

Thanks for the replies. Deltaj, Thank you for taking interest in me. Their saying it's primary erythromelalgia, which means there is no cause. Supposibly it's genetic. They did punches(biopsies) of my had to test for thrombocytosis. They really did work me up, that's how they came up with dx of erythromelalgia. The only way to make a dx of erythromelalgia is to rule everything else out. I have a reuhmatology appt on monday at the VAMC. ______________________________________________________________ Pete53, Thanks for the words of encouragement. ______________________________________________________________ To all, I sent in the SSA evidence to my VSO. I sent it wednesday, I called the 1800 number friday for something else. While I had them on the line, I had them check out the status of the claim. When I called about two weeks ago, the DRO had it(it was in his possetion, probably 1000 cases from actually being worked on). When I asked about the status of it now, the guys said it was with appeals management. What is this? He said the appeals management can also make a decision. Could this be what my VSO was talking about? Maybe he was just saying this VA section was like the STAR review. Thanks for your time everyone! You guys are great!

Carlie, I'm starting to grasp that concept now.. I've been doing a lot more reading on here.. I need to figure out what my next step is going to be. I went ahead and sent the SSA documentation to my VSO. He really seemed to think it would be pertinent to my claim and that it would help.

Carlie, I will def. do that before posting from now on. Rentalguy1, Thanks for the words of encouragement. Thanks to everyone again for all the great posts thus far!!

Berta, Thanks for the indepth look at this. I do have a copy of my SMR. They never found any blood disorders. They never really found anything out of the ordinary except for my symptoms(I'd go in there every day with flared hands and feet), and the hypertension and tachycardia which is really odd for a 24 year old to be having. Especially, this is while was active duty and still really in shape. My fitness did decline as the condition became worse(the flares are very painful and are caused by stress both physical and mental, cold, heat, and lack of sleep). To this day, they can't figure out why I have hypertension and tachycardia. They just adjust my medication as they see fit. My g-mal takes a quarter of the blood pressure med that I'm on and she's 75. The tachycardia medication I'm on, I'm at the maximum dose. The sad part of this all is I know I'm not going to be around as long as other people from my generation due to these conditions. I just wish the VA would be more passionate about my situation. Atleast when I'm gone, my daughter and wife will be able to get my benefits. I hope. Also, I'm not a PGW vet, atleast I don't think so. I'm not even sure if I'm considered and Enduring Freedom vet. I deployed to the gulf on my ship, but never seen any ground action. There's been confusion with the VA as to wether what kind of vet I am. As far as the other vet that had these same problems. It's diagnosed in my medical record as Erythromelalgia. They shouldn't be able to dispute that. The CFS, I'm still not sure how SSA came to that conclusion. It actually baffles me. Like I said to my VSO, I'm not complaining, but they didn't even do an C&P(SSA) exams on me. They did it soley off my SMR. I'm pretty sure I'd remember getting diagnosed with CFS, but I honestly dont. Thanks again for all the help. I don't think your looking at it all wrong. This is sad to say, but I guess it makes me feel better that they screwed up on another vet with the same condition. Apparently their criteria aside from the VASRD is wrong.

You guys are right. I was kind of harsh there. I appologize Larry J, honest sincerity. If you only knew what I went through to get a diagnosis. I was diagnosed with lupus, chilblains, burgers disease, ect. It litterarly took a year and a half of 3-4 visits to the hospital per week to get a diagnosis. Every visit entailed blood work. They would have figured out it was an iron deficiency. That stated, I am very frustrated with the VA. I took it out on Larry J. That said, I want to appoligize again. Rentalguy1, I've been trying to take the advice on this thread. It's just hard to choose a path. I've gotten tons of great advice, but it seems that I hit a brick wall with any avenue I take. I've thanked everyone on here a few times, I'll do it again. Thanks for all the great advice thus far. I don't know what I'm going to do. I've honestly thought about giving up here recently. I just spoke to my VSO, he seems to think the SSA evidence would be pertinent to my claim. I asked him about TDIU, and he said that would be an avenue, but he seems to think trying to work on my appeal first would be wise.

By the way, what would suit me is to not be f'd up at all... I'd love to be able to live the prime of my life with out any problems.. Yeah, my illness "suits" me so I "choose" it on my "VA claim". Your a real joke.

Ok, thank's for your medical opinion... Oh wait, your not a dr. I wish it would have been that easy for me to get my dx.'s.. Only after a couple years of them constantly testing me were they able to figure out what I had... I also like how SSA decided they were going to dx me with chronic fatigue syndrom.. Def. news to me that I have that..

Congrats on the win! I know you haven't gotten a favorable determination yet, but your def. one step closer!