4myboys

I agree, CUE is virtually impossible to prove with the VA having an escape clause regarding every CFR....My DRO hearing went well and hopefully I will come out with a favorable decision. The factual error in my claim is undebatable. The original rater clearly changed the findings on my MRI, he didn't just interpret them wrong, he changed the diagnosis. The DRO told me he saw the error and agreed with me....but didn't say outright you "win". Now I play the waiting game. Sure would like to know before Christmas....my kids would be happy if Santa got a bonus :) From what I've heard...due to the pretty decent retro back to 1998, if I were to receive a favorable decision it might be intentionally delayed....I don't know how much I agree with that, but word of mouth says it happens quite a bit?

The CFR's regarding the spine were not changes until 2002. I pulled all CFRs for decision rendered at the time of my rating. 1998-1999 CUE law states:If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision “has the same effect as if the decision had been made on the date of the prior decision,” 38 U.S.C. §§ 5109A(b), 7111(b). The error wasn't mear interpretation. It was factual error. MRI's, EMGs, exams etc. all have clearly stated diagnosis and findings of Sciatic Nueropathy and compression of the L5-S1 nerve roots. No where does it remotely state maybe, could have, possible has, doesn't have, etc. (Please note I am preparing for my DRO hearing. Your questions, comments, and opinions, whether agreed upon or not, are extremely helpful for me to research and respond to my CUE claim. I am not attacking responses to any member here, only pleading my case and prepairing for responses I will recieve from the DRO. so thank you!) SORRY I posted this in the wrong forum. Overlooked the CUE forum !!!

I have read quite a few...but always end up with the "well I have that, but maybe not that??? or that's exactly what the rater did or didn't do" What are the best websites to pull up BVA decisions? Thanks for your advice! I really take everything said into account and use the advise to further research my claim! Thank you!

Did not appeal 99 decision. I did not see the Error in fact. VSR rep saw the CUE and pointed it out to me. I have already sent in CUE claims. I have a DRO hearing in 8 days. Went on a CUE claim because that's what the VSR said to do. This is where it becomes frustrating. I along with many was ill advised. I never knew to order C File until the VSR pointed out the CUE. I was told by my POA (DAV) take the 40% don't fight it or they can take it away. (I didn't know any better at the time, young, ignorant and injured!) I also didn't know anything about the CFR's....all of this came about with the help of a VSR. It seems as though Vets are punished for not being detectives, doctors, raters, lawyers, etc. It was the raters job to perform his duties accurately, it was the raters job to ensure all medical records were reviewed with accuracy, it was the raters job to ensure I had the proper percentage assigned. (that's all law according to the CFR's) So in a sense...at the time I didn't disagree, I just didn't see the error.

To: Department of Veterans Affairs Decision Review Officer In regards to Clear and Unmistakable Error found in the original rating decision by the Department of Veterans Affairs on behalf of ____________; the following Code of Federal Regulations was not, as required by law, applied: TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. 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. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. At the time of initial rating evaluation, September 1999, all medical records including SMR's, MRI's, EMG's and numerous pages of Doctors reports/evaluations/diagnosis' were in the hands of the rater. Veteran's Application for Compensation or Pension dated January 7th, 1999 Nature and History of Disabilities Section 17. SCD's: Ruptured & Herniated Discs, Sciatic Nerve Damage, Degenerative Disc Disease, Dehydration of Lower Lumbar, Migraine Headaches, Severe Chronic Back Pain, Spasms, Chronic Sinusitis & Bronchitis, and all other SCD's as noted in SMR's. Sciatic Nerve Damage was specifically requested as part of my reason and basis for compensation. 1999 Rating decision Reasons and Bases: Service connection for central disc bulge L5-S1 has been established as directly related to military service. This condition is evaluated as 40% disabling from April 22nd 1998. Next paragraph: August 1997 and MRI revealed TWO disc bulges, the largest one at L5-S1 and contact but did not compress nerve roots…. (In the same paragraph diagnosed sciatic neuropathy defined) Straight leg raising was positive on the left at 20 degrees with radicular pain from the lower back to the left posterior buttock and left gastrocnemius muscle. X rays showed Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of S1 nerve roots. Clear and Unmistakable Error in FACT recorded in rating decision per CFR 38 Part 4.2. Section 4.2 in CFR Interpretation of examination reports: 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. Impression as taken from the actual MRI findings report dated August 11th, 1997. 1. Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of the S1 nerve root, left greater than right. Also in record to support continued and unremitting Sciatic Nerve damage was EMG findings dated January 14th 1999. EMG Findings: There were moderate chronic neurogenic changes in the form of poor activation and increased duration of amplitude of many to all the remaining motor units in the left flexor digitorum longus, extensor digitorum brevis and semitendinosus muscles. There were mild to moderate neurogenic changes in the left tibialis anterior muscle. Impression: EMG and nerve conduction studies of the lower extremities and related paraspinal muscles reveal changes suggestive of left L5 Radiculopathy. This is moderate in degree of electricity. Service Record documents from: Neurosurgery Clinic dated January 9th 1998. Diagnosis: Chronic Back Pain/Herniated L5-S1 Left S1 Radiculopathy Left Leg Findings from Physical Evaluation Board Proceedings: Diagnosis and Ratings: Category 1: Chronic Back Pain/ Herniated L5-S1 Category 2: Left S1 Radiculopathy, Left Leg related to diagnosis 1. 1. The September 1999 rating decision contains clear and unmistakable error in not only ignoring evidence but denying entitlement to service connection for Sciatic Nueropathy as part of the original diagnosis and rating of: CFR 38 Part 4 dated 1998-1999: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief rating of 60%. CFR 38 Sec. 4.21 Application of rating schedule. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. Based on the requirements of the Law at the time of decision and evidence of a Clear and Unmistakable Error, I am entitled to a retroactive date to initial claim January 7th, 1999 with an effective date of April 22, 1998 for compensation at the 60% level.<BR style=mso-special-character: line-break"><BR style="mso-special-character: line-break">

My claim was sent to Rater on May18th, 2009. I too was excited as the last time it only took 2 weeks, well not so this time. I have been bounced around from rater to authorization and back 3x now....Just found out it was picked up by a supervisor to be reviewed as it hasn't been moving. Now I risk losing the unofficial rating that the DAV sent me (which was REALLY good), since my claim is now being re-reviewed by a supervisor. I was told it would be "worked" on this week and I would be notified when it is authorized. My claim is more complicated than others, so I understand it taking longer, but this is ridiculous...being bounced back 3x !!! PS: Aquabear....CUE's only exist if there was a grave error in your original decision...not just a disagreement on your part. From what you've posted it sounds like your claims will be from the date of your recent claim. The VA can not be faulted for increased disability after your original decision. If you wanted an increase back then you would have had to put in a claim for it, just as you have done now.

I'm in San Diego. They handle claims pretty fast, but then there's always mine :P I must note that mine has some back pay to 1998, which apparently requires a few signatures and this has caused it to be checked over a gazillion times, in which of coarse they have found a mistake each time. Very frustrating. Thank God we are able to pay for what we need...I would be camping in front of the VARO if we were in dire need! Keep us posted...Good Luck!

I hope by the time you read this...you have already received your official letter and big fat deposit. Unfortunately I am going to unintentionally burst your bubble. I received my rating on May 18th, it is now July 27th, I have yet to receive my retro pay or my official letter. I have been bounced back and forth to from finance, authorization, and the rater 3x since May 18th. Rest assured the info you have received is most likely correct, it just may take a bit longer to have in hand. I pray for yours to come this week and that you don't go through the anxiety that I have been through. Some day it will be done Many Blessings!

How about being ignored completely? My original claim asked for evaluation of sciatica. It was never even mentioned. I was originally told it was lumped into my back. Found out 12 years later that I have a serious CUE, they should have given me a rating because it was specifically requested as a separate disability. Any one with sciatica/radiculopathy/neuropathy knows the excruciating pain and the on and off symptoms. Just don't move the wrong way or you'll end up on the floor! It's extremely difficult when you go to the Dr and your flare ups are down or medicated.... I had an EMG at the VA. They couldn't get a nerve reaction so they made one! Literally there was nothing, so 2 tech's came in and started pushing on my leg and foot to create a response. I questioned it, but they said it was normal. I stated that there was no way that is a normal response when you are creating it. I was so mad...that EMG the tech put in my records "normal". I wrote a statement for my file against it! Anyway I eventually ended up with a 20%, doubt I'll ever get more than that. I have intense physical therapy to keep from having any atrophy. Good Luck with your NOD's...!

They will help you put together an educational plan with about 48 months for completion, given you haven't used any of your GI Bill. You can definitely choose to go part time....starting from scratch that will take awhile to complete...but that's ok ;) You can go to school for a Degree or specific Training/Certification, tech schools. Some insider points for Voc Rehab....some states pay subsistence allowance while you attend online education...some don't. The Voc Rehab program pays for tuition, books and then gives subsistence allowance, while GI Bill gives you a set amount of money and everything you need comes from that, you keep the left overs. What ever you need to support your educational plan...ask for. (Laptop, chair, pens, paper, calculator,) If you don't ask you will not receive... Hope some of this helps!

Good for you! Sorry for whatever ails you, but am happy that you will hopefully have some financial stability!

They meant 3 months to be looked at, another 3 months to be decided, another 3 months at Authorization, another 3 months when Authorization finds something "not quite right" or "the t's aren't crossed and i's aren't dotted" and it's sent back to the rater, another 3 months back to Authorization, another 3 months getting signatures, another 3 months to produce the Denial letter, another 3 months to look at your NOD, ooooo, I'm just being pessimistic. (although realistic for many of us) I wish you the fastest 3 months ever! Good Luck! You never know, some claims go through in 2 months! PS: when you start to wonder what is going on with your claim go through the IRIS system rather than using the 800#. The 800# will just frustrate you with false info....!

What Voc Rehab will look at is your current job and it's financial ability to support your family. The main point of Voc Rehab is to get you employed. You need to state that your current position is not a career that will support your family. You will have to be very specific about the career path you are looking for that will not affect or be affected by your disability/ies. Voc Rehab will require you to have a specific goal with a specific education plan. Research the career you would like to have, the employment rate of that career (teaching is a hard one at the moment with government cutbacks), job availability/demand etc. All of these need to be in your favor... Example: I have a degree in Psychology which doesn't go far. Voc Rehab approved program in NY for a Bachelors and Masters in Psych/ Social Work. Completed my Bachelors. Moved to CA, had to reapply, Voc rehab does not always transfer. CA would not approve Masters. (fighting it) Now I have a degree that goes no where. You can not be a Social Worker/ Counselor without at the least a Masters Degree. My point is...be very selective and make sure you choose a career path that is right for you, considering your disability. Research and put together a case for your Educational as well as Financial needs. Good Luck!

So much for feeling special. So my special number has no answer....I think he's on vacation. I called just to follow up. Since there was no answer, I reluctantly called the 800 #. SO, my claim is Back to the Rater AGAIN for the 3rd time. Authorization back to Rater.....3x ! I am sick of this. What t's aren't crossed or I's dotted! ? ! Shouldn't the rater fix the problem and physically hand it back to be authorized? Every time it goes from one place to the next and back again it takes another couple of weeks. Come on Now this is absolutely ridiculous! Instead of any day now, I'm looking at any year now! Sorry had to vent! (To those of you that are affiliated with the VA job force...and do your job with due diligence and integrity, thank you! )

I agree with Berta. I had my entire claim reconsidered by the VA back to 98, based solely on my original claim and the evidence submitted 12 years ago. We found CUE's that changed the outcome of my rating from initial claim. I did not have to submit new and material evidence; however, I had to highlight all areas of evidence not acknowledged/considered, but submitted in original claim. I have also been told that once you open up a claim, you are opening up your entire record in which the VA has the right to review all SC disabilities. I'm not sure of the accuracy of this statement, but I have been told this by many VSO's.

Oh don't worry...I have my children sitting by the window with bells and whistles. At night I put them in night vision goggles, just in case the mailman realizes he forgot my envelope and makes a special delivery :) So hard not to be anxious, excited, just stressed out. I'm sure I will cry like a baby when the funds are in the bank! As far as that number....are you in the San Diego area???

OK, everyone...brace yourselves! I received another response from IRIS just checking to make sure that the phone call follow up I received from the representative from VARO was satisfactory....! What? I'm confused, they are actually showing a genuine concern for the Vet. I have never had this happen in all these years. Then I received another, I repeat another phone call from the same gentleman at VARO with more information for me. Unfortunately I missed his call, but he left me a DIRECT LINE ! I feel super ultra privileged.....I have a direct line number! No more 800 number for me :) The second IRIS response also told me that this so called Debt will not affect my claim. They said they will complete my claim...then send my file to the finance department to research this so called debt. SO this means they aren't going to hold up the "official" notification of award....good news. I hope that they don't hold up the retro pay...I can see this happening, but hopefully not. That big brown/white/yellow (I'll take any color of the rainbow at this point) envelope should be any day now! I'm beginning to feel a little special B)

Any chance you specifically asked for compensation for your back in your original claim? IF you did and they did not give you a rating...you could get it dated back to your original claim...??? Have your Dr. order an MRI for your back. Submit submit submit. I have had severe back pain from an injury over 10 years ago and it has only gotten worse...! Take care of yourself!!!

I think so too, but I also thought that 8 weeks ago when I was told it was with the finance department...then it bounced back to the rater and has been there ever since B) Oh well, even though it hasn't been a couple of days.....it has sunk it! I won't spend it till I got it :)

What exactly do you mean by injury??? Do you mean painful symptoms that are somehow related to your spinal injury? This would be possible through nerve damage????

I sent a Waiver, also stated Financial Hardship, and requested a Hearing. As advised by the DAV rep I sat down with yesterday, I also asked for payment plan. This seemed as though I was admitting that I owe the debt, but the DAV rep said that if I don't get the waiver they will take it all in a lump sum. Regardless I have begun the battle. Thanks for ALL the advice on this....I have utilized it all! B) Today, in total amazement, I received a phone call from VARO regarding the IRIS I put in a week ago. He told me that my claim is at the awards portion. I haven't heard of this way, is this the finance department? He also said that my claim should be finalized in no more than 30 days and it will be worked on tomorrow. I think this VERY NICE gentleman was very careful with his terminology to avoid accountability, but I understand; it's not official until it's official :) Anyhow, pleasantly surprised by this call today. Persistence is beginning to pay off. SLOWLY but SURELY.

Hi Sharon, no home loan...received separation pay, but that was already recouped before I ever received a single compensation payment (that was for only around $5,000).

I should be receiving my decision letter any day (lol) from a claim I put in 8 months ago. It's at the rater for the second or third time. Would requesting a financial audit delay my c&p claim; or, should I request an audit so that they don't touch the retro pay I should be getting (which by the way is back to 1998)? Can they even do that if I appeal the Debt letter, NOD it, send in a waiver, etc? When I spoke to Debt Management, which is the number above (I think) they said I would have to call my local VARO to request a financial audit. When I called my local VARO they said it is from Buffalo...call them? I tell you what I am so tired of being bounced from one number/person to the next! I really appreciate all the great advice I'm getting in just a couple of days! Keep it coming <_< .

Uh oh....it's until then...the amount was in the original letter from Debt Managment for $12.639.00. That is no chump change. I was thinking (I try not to do too much of that) Voc Rehab was ALWAYS late paying the school. When I tried to get my diploma and transcripts the College wouldn't give them to me until my account was paid off. I'm thinking Voc Rehab/VA had to pay out a large sum that may have caused a red flag all these years later. MAYBE someone inputted into the system that the monies due the school went to ME (which obviously didn't) I can't remember the total amount due the school but maybe just maybe that's what this is all about! Hmmm?!?!?!