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Found 62 results

  2. Hi there, Does anyone know of a case where a DRO revised an effective date during the appeal period because the original claimed condition was never examined (this was in 1983)? I have submitted a NOD for an earlier effective date because after 5 times of claiming foot injury/plantar fascitiias, my dad was finally awarded max rating. He originally claimed in 1983 and the examination is completely void of info concerning feet. That was one of the conditions claimed. Maybe Berta-can you see the VA calling CUE on itself? (CFR 4.7?) Any info is appreciated. Beth
  3. In 2012, I was denied service connected for Necrotizing Myopathy. At the on-site of my disease my private doctors believed my muscle weakness was due to my statin meds. This is the reason the VA turndown my claim. I also submitted the claim under desert storm undiagnosed illness since sat time my condition was being examine to to find the try cause of the illness. After further testing, my diagnosis were Limb Girdle MD (adult onset). The reason I believe the initial, claim may be a CUE because the condition was chronic and therefore as should had fallen under presumptions. Am I correct? Or, should I just resubmit a new claim for Limb Girdle? Yes, I do have a nexus. Much appreciated!
  4. Hi everyone! I'm new to the page and was hoping someone here might be able to give me advice on possible next steps. I've already taken action on getting earlier effective dates for two conditions but because you never how claims are going to go I want to prepare myself should my claim not go in my favor. My story begins in 2007 when I filed my initial claim with the help of AMVETS. The entire VA claim process was very intimidating and I depended heavily on my VSO to tell me what I could/couldn't claim. He went through my STR and told me what I could claim. Ultimately, I was awarded 60% and felt extremely lucky given all the negative things that I had heard about dealing with the VA. Once I received my award I didn't revisit my VA claim until 2016. My conditions had gotten worse and after doing research online and finding the CFR I realized that I was not being compensated fairly and that I was also not being compensated for conditions that I had in service/currently had and were never claimed. I filed my intent to file and then scoured my STR for evidence of current conditions that I wanted to get SC. This post only concerns two conditions that I believe I should have an earlier effective date for so I will only mention those two below. I figure the easiest way to digest my story is by listing everything chronologically so here I go: Sep. 4, 2007: Separate from the Navy Oct. 24, 2007: File claim for chronic lower back and radiculopathy down right buttocks, also filed claim for SUI, Cystocele and Rectocele Jan. 24, 2008: Awarded service connection for lumbosacral strain 10% (claimed as lower back condition w. radiculopathy down right buttocks) Awarded SC for Urinary Stress Incontinence with Cystocele and Rectocele 20% Effective Date: Sep. 5, 2007 May.9, 2016: File Intent to file Jun. 16, 2016: File claim for increase for chronic lower back condition, file new claim for uterovaginal prolapse Sep. 6, 2016: Awarded increase for lumbosacral strain 20% (claimed as spine condition), awarded SC for radiculopathy right lower extremity (20% even though I did not claim this but it was noted during my C&P exam for increase for chronic back pain), awarded SC for uterovaginal prolapse (30%) Effective Date: May. 9, 2016 Apr-May 2017: Look through old rating decision and claims file and realize that I had claimed radiculopathy on my right side in 2007 claim. Realized that the VA mentioned my uterovaginal prolapse in their decision about my SUI and cystocele/rectocele. Aug. 30, 2017: Visit Baltimore RO with NOD in hand to request earlier effective dates for my uterovaginal prolapse and radiculopathy, they stamp it and then tell me that I need to file a new claim not a NOD. They told me that I can't appeal a decision that they haven't issued yet. They rip up my NOD (which I still have) and provide me a form 21-526ez where I request earlier effective dates. Sep.6, 2017: I receive a letter from the RO stating that I filed my NOD on the wrong form. This was confusing because I didn't file a NOD because the RO told me that I had to file a new claim for the EED. Sep. 16, 2017: They add the new claim for earlier effective dates and I can see it in E-benefits. They combine it with a current claim that I still had pending for something else. Sep. 26, 2017: (decision on uterovaginal prolapse and radiculopathy become final) Oct. 6, 2017: My claim on something else is completed and they completely ignore the claim that I filed for earlier effective dates Mar. 6, 2018: VSO fills out another claim requesting EED for uterovaginal prolapse, and radiculopathy. Claim is currently at preparation for decision I believe that I'm entitled to earlier effective dates because 1) I claimed radiculopathy on my right side in 2007 and they combined it with my back pain in 2007 and issued me one rating. My symptoms are exactly the same now as they were in 2007 so why were they able to issue me a seperate rating in 2016? I was diagnosed with sciatica/piriformis syndrome in service and I have radiculopathy that originates in my buttocks and goes down my right leg. 2) I didn't claim uterovaginal prolapse because I didn't know that I could but the VA knew about it and mentioned it in their Rating Decision narrative for SC for my SUI and cystocele/rectocele. Everything that I read says this amounts to CUE because they did not "sympathetically read my claim and determine all potential claims raised by the evidence". I was told by my VSO that they were supposed to invite me to claim that condition which they never did. What do you guys think? Had the VA issued me ratings for those two conditions I would have been awarded 80% instead of 60%.
  5. I sent this CUE to Berta on another thread and she thought it was really good. However, I just got a denial from the St. Pete VARO today (they are really illiterate). At issue is the fact that any conditions similar to dermatitis or Eczema are rated under code 7806. These conditions can be rated on amount of body they cover, or more importantly, how often you have to take "systemic medication" for them. Systemic medication is usually defined by the VA as oral medications or injections, but not topical medications and if you take it constant or near constant, the rating is 60%. In the denial letter, I am still service connected for a skin condition at 0% as I was in 2009, but the VARO completely ignored the fact that I have been on constant systemic medication since 1998 and should be rated at 60%. The medication was completely ignored in the decision. I provided military medical records from 1998 where I was put on constant medication, and Bluebutton pharmacy records from a military facility that date back to 2004. All that evidence was submitted with my CUE. I thought this was going to be so cut and dried, and now I know why so many people complain about the VA ignoring the evidence and why the appeal system is so backed up. I guess I will be getting on the hamster wheel and ask for a reconsideration/DRO Review/Appeal. Anyway, I attached a redacted copy of the CUE that I did in the event someone can use it as an example. I hope it works better for them than it did for me. JustGettingStarted Motion for Cue-REDACTED.pdf
  6. CURRENT STATUS: 100% P/T CLAIM SUBMITTED: 14 JAN 2015 INFORMAL CLAIM SUBMITTED: 26 NOV 2013 INFORMAL CLAIM RECIEVED LETTER DATED: 16 JAN 2014 PROOF of INCORRECT EFFECTIVE DATE IN CLAIM SUBMITTED 14 JAN 2015 1. 21-526EZ LINE 5 - Have you ever filed a claim with the VA? Yes box checked "Informal Claim" handwritten in box 2. 21-526EZ LINE 9 Handwritten inside box: NOTE: Attached is copy of DUA letter dated Jan. 16, 2014 stating I had to submit this formal claim "within one year from the date of this letter" January 16, 2014. I am of the opinion that this submittal meets the requirement to use date of informal claim as the effective date of claim for this submittal. 3. 362/LM - INFORMAL CLAIM RECIEVED LETTER Dated 16 JAN 2014 Title of Letter: "IMPORTANT -- reply needed within 1 year" Relevant Text of letter: a. 'We received your request for VA benefits on November 27, 2013. We consider this request as an informal claim for benefits.' b. "If your completed application is received within one year from the date of this letter, and we decide that you are entitled to VA benefits, we may be able to pay you from the date we received your informal claim." 4. VA FORM 21-4138 STATEMENT IN SUPPORT OF CLAIM Dated: 26 NOV 2013 "INFORMAL CLAIM FOR THE FDC PROGRAM I attend to apply for compensation benefits under the FDC Program. This statement is to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission" PROBLEM: On 17 APRIL, 2014 I was at the mental clinic at the VA. I was homeless at the time so they sent me to a social worker. The social worker I believe had me fill out a form for an emergency pension. I'm not sure what I filled out exactly-not a very clear time of my life. In my paperwork I have, I see I received another informal claim letter reflective this date of 17 APRIL 2014. QUESTIONS: 1. Could opening a CUE appeal impact my current 100% P/T status? If there is any chance of this I do not want to submit a CUE at all. I just want my effective date reviewed, nothing else. Is that possible or does the whole claim get reviewed? 2. Is there someone I can contact at the VA to see why they decided on the effective date I have right now? Maybe I'm missing something and I didn't follow the rules correctly. Maybe whatever I did on 17 APRIL 2014 impacted my effective date/but even then, wouldn't my effective date be 17 APRIL 2014? 3. In your opinion, do I have a case for CUE? 4. How long does the CUE process take in your best guess? Please include any other advice or information, links that might help me. Side note: It goes without saying, but I would like to say it anyway; thank you so much for making this forum a resource for not only myself, but for all veterans. You guys are truly helping; THANK YOU.
  7. Okay, now that I have been at this for over a year, I am now starting to understand the V.A. I was medically discharged in 1975 with a recurrent dislocating patella with a DoD rating of 10%. I started having problems, as noted in my SRT, in my 10th week of boot. It was not till a year later, when bowling @ Leatherneck Lanes, that my patella completely dislocated, tearing ligaments and my meniscus.I was seen the next day in Ortho, with a 'grossly sublexed patella' and subsequently discharged for this condition. Two months later I landed a job with Southern Pacific Railroad. About a month into the job, again, my knee went out on me causing me to 'crash and burn' at work. I was seen that evening at the V.A. and referred to Ortho, who placed me in a full leg cast for six months. Because of this I lost my job at the railroad I then applied for Vocational Rehabilitation and put on the form that I was 10% disabled. I did not realize that it was a DoD rating v. a V.A. rating. I was subsequently denied, but it was never explained to me the difference of DoD v. V.A. Again in 1980 my patella went out on me, again tearing my meniscus and ligaments. I went to the V.A. and was X-rayed, which showed torn ligaments. I then applied for V.A. disability. I was denied, but did not know this till recently and why, as I was homeless and did not receive the notification. According to the V.A. they submitted form VAF 21-526. They stated that I "did not receive subsequent treatment for my injury since my discharge." Which was obviously untrue, as I had been seen by the V.A. for this injury only four years earlier, only three months after my discharge, and lost my job because of it. Today the V.A. cannot find the records of my 1975 - 1976 6 month Ortho rehab. I can understand losing them 42 years later, but not 4 years. I am hoping my claim is wrapped up with the V.A. within the next month, as I had my final C&P last week for my back. I have three discs that are protruding, one is on a nerve. This is due to my gait being off for the last forty years, because of my SC knee. OH and my SC knee, they rated at 30% and took it away as they said that it was a prior injury to service and was Service Aggravated. During the Ortho exam, after the 1975 accident on base, I stated that, once as a teen my knee gave way running track. For all I know, I could have stepped on it the wrong way, as my patella never dislocated and tore ligaments ... But the V.A. now insists it is Service Aggravated and gave me 10% for arthritis. After I was service-connected and applied for an increase, the examiner that rated my knee recently amended the exam and said that, because my condition is so severe that my left knee must now be included, as well as a bilateral factor, as I have arthritis in that knee, as she said, because of my gait. And she ordered an MRI of my Lumbar. The MRI shows DDD from S1 L1-L5. And specifically L4-L5 which I was recently told that I will need surgery, as they are compressed and pressing on a nerve. Recently I located my physical fitness entrance exam and it makes no note of ANY issues and passes my lower extremities. I believe, because of this that the 30% for my R knee, that was denied should be awarded? Do I have a CUE from the 1980 error? Thank you for reading my question? Oops ... I posted this question a few months ago: The V.A. is driving me nuts!
  8. I was admin separated from the Corps because of bilateral petal femoral pain syndrome. I filed a claim with in one year of my discharge. The VA sat on it for almost a decade, until I submitted another claim, asked about the first one and filed for the exact same issues as the old claim. The only mention of this claim has been in my awards/denial letter. In the awards sections I was told that my effective date was the date of my discharge due to an unadjudicated claim that I submitted with in one year of my discharge. My question about the CUE is that if they are working with that unadjudicated claim that was submitted with in one year of my discharge, isn't everything that I claimed supposed to be presumed to be service connected? I was active for 2.5 years and honorable discharged, I meet all of the in service requirements that I know of. So what do you think, do I have a CUE since they never adjudicated the claim that was within one year of my discharge? The only thing that I think is going to hurt me is that the unadjudicated claim still isn't in my ebenefits site or c-file, so they might say that my claim date was the date I filed the new claim. Which is funny because they mention the old claim as the reason for my effective date being my discharge date. I still have the old claim and reference number they gave me. I'm at 80%. I count this as a win, but I still want to push forward. It's been a long fight and I'm not ready to give up. The items I was denied for should bump me to 90%. Thank you for your help, Stephens EDIT: Can someone move this to the CUE section? Sorry, I didn't realize I was posting in the wrong section.
  9. Good news, I filed three CUEs and now have three C&P exams. Great news, it's with the VES and not the VA. The best news, I've seen one of these VES Doctors before and he rated the disability exactly correct! My question is, since I was given the C&Ps for the three disabilities that I filed the CUEs against, does this mean that the VA is agreeing that they made a CUE? I understand the exams still have to happen for the rating portion, but does this mean the bureaucratic part of the VA agrees there was a mistake? Logic tells me "yes, why would they schedule an exam if they were just going to deny the CUE." However, this is the VA and logic is hard for them. Last night I was going through my records to get them ready for the C&Ps. While I was doing this, I found another CUE that if accepted will net me another 10% back to 2005. Go through your records, DBQs, and Rating Decision letters, you might have CUEs just waiting to be found! Thank you, Stephens
  10. mrstephens11

    Is this a CUE

    If I claimed to be rated for chondromalcia(knee) and I'm given a rating for flexion limitation and the VA didn't give me a rating for instability, but my knee does give out. Is it a CUE that they didn't try to give me a rating for instability? I have evidence of falling from my knee giving out in service and since then. Can some one cite some case law that would apply to them not giving me a rating even though I didn't exactly claim it? Thank you, Mike
  11. If at a RO hearing, the hearing officer determined that a Veteran's previously unknown medical condition, i.e. heart arrhythmia or hypertension, was found so soon after entry, ( about 2 weeks ), onto active duty that in their opinion it couldn't have started in military and therefore denied the claim on that basis, have they in essence made a medical opinion and therefore something that could be contested as a CUE?
  12. I submitted a CUE in July 2016 and checked on the status of CUE claim November 2016. My C-file has a Report of General Information form in it, with the note below. It seems like my CUE is just sitting in limbo and they stupid thing is, they state right in their notes that "CUE needs rating separate from appeal…" My CUE is not listed in eBenefits or on Vets.gov. What can I do to ensure CUE claim is being worked on? Thanks...
  13. Berta Here is the CUE I did for SCM-K. I know now that it does not have to be a Motion at the VARO level, but I will be ready to do an appeal if the VA does not approve my CUE. :-) I probably won't get a decision until early 2018 because I have filed several claims in conjunction with this one, including the two other CUEs. ----------------------------------------------------------------------------------------------------------- MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR (CUE) FOR NOT PROVIDING SPECIAL MONTHLY COMPENSATION FOR LOSS OF USE OF A CREATIVE ORGAN I am requesting a motion to revise a rating decision made by the St. Petersburg, FL VA Reginal Office on August 11, 2009. The decision in question is for myself, Just Getting Started, VA File Number ######, with the Rating Decision date of August 11, 2009. ERROR: In a 2009 rating decision, the VA recognized service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation at 0%. However, the VA failed to provide Special Monthly Compensation (SMC) for loss of use of a creative organ per 38 U.S.C. 1114(k), “When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted.” I request Special Monthly Compensation for loss of use of a creative organ be provided as of May 2009. This request meets all the requirements of a CUE. A CUE exists if 1. There is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. I should have been awarded Special Monthly Compensation for loss of use of a creative organ when I was service-connected at 0% for endometrial ablation. In the 2009 rating decision, it very clearly states I had undergone endometrial ablation for relief of other conditions and I was given 0% service connection. When the VA service-connected my endometrial ablation, they were required to provide SMC for loss of a creative organ at that time. Below is the exact wording from the rating decision package (attached): “7. Service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation. Service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation has been established as directly related to military service. A noncompensable evaluation is assigned from May 1, 2009. A noncompensable evaluation is assigned for symptoms that do not require continuous treatment. A higher evaluation of 10 percent is not warranted unless continuous treatment is required. Records from Panama City Surgery Center show that following pelvic ultrasound on September 6, 2006 revealing early development of uterine fibroids, you underwent dilation and curettage and uterine hydrothermal endometrial ablation on November 2, 2008, following symptoms of menorrhagia, abnormal uterine bleeding, and cramps. You reported that the procedure resolved your symptoms. Upon VA examination you gave our examiner a history of onset of hot flashes about 2007, worse in 2008, and having been prescribed Prozac with good response. Our examiner diagnosed dysfunctional uterine bleeding and early uterine fibroids development (per pelvic ultrasound August 9, 2006) status post hysteroscopy and hydrothermal endometrial ablation, and hot flashes due to menopause.” 2. Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule The VA failed to follow procedural directives when they did not provide Special Monthly Compensation under §3.350 Special monthly compensation ratings, rates of special monthly compensation stated in this section are those provided under 38 U.S.C. 1114. Loss of use of a creative organ is included under this statute to include “loss or loss of use of a creative organ resulted...from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted” In the 2009 rating decision, it clearly states my endometrial ablation followed “symptoms of menorrhagia, abnormal uterine bleeding, and cramps”. This clearly comes within the scope of the statute. 3. VA overlooked material facts of record, or VA failed to apply or incorrectly applied the appropriate laws or regulations. In this case, the VA clearly failed to follow the appropriate laws or regulations. The VA recognized the endometrial ablation as being service connected and should have provided Special Monthly Compensation as a result. In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). In the laws at that time, endometrial ablations had already recognized by the VA as a form of sterility for many years. For example, in 1999, BVA Citation Nr: 9914661 states: “ A VA medical opinion in February 1998 stated that endometrial ablation usually resulted in sterility. However, if a patient did become pregnant following such a procedure, it was highly unlikely that she would have a normal pregnancy and delivery.” (attached) 4. The VA had all evidence in hand when they made their decision in 2009. The 2009 decision clearly shows the VA had all medical evidence in their hands when they allowed for service connection at 0%. This request is not based on new evidence. 5. The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. The error resulted in a loss of income of approximately $100 a month for over 100 months. This request for Special Monthly Compensation meets all qualifications for Clear and Unmistakable Error. I request Special Monthly Compensation for loss of a creative organ be backdated to the date of my original request of May 2009. With all due respect, Just Getting Started
  14. I was diagnosed in 2010 with Bilateral Carpal Tunnel 10% Right (Major) and 10% Left Minor. I just noticed that the Neurologist's report sent to the VA reads a diagnosis of Carpal Tunnel Right = Moderate and Left = Mild. The rating for that should be 30% (Right/Major) for moderate and 10% (Left/Minor) for mild. Is this a pretty clear CUE or do you think I may have problems changing the decision?
  15. Improper handling of 1999 VA Compensation Claim I will do my best to present this in a short and respectful manner. I will do my best to truthfully represent all facts and evidence as it was presented in 1999 VA Claim. It is therefore I am seeking help in identifying any missing documents, missing evidence, non compliance of VA Regulations, etc... I will post the photo copies of the record on my C-file which I received in 2015. I will present the Claim as it was filed through the local VSO in Farmerville, Louisiana County/Parish: Union Subject: VA Compensation Claim for Albert Dodd Dated: 15 June, 1999 Copy of Claim Submission: ** ( All files are in PDF format and saved to my Google Drive ) ** ( View Only ) ** https://drive.google.com/open?id=1d9HHYJHe3fgLuItJ6INugPqWLAZDg1am VA Claim submitted on: 15 June 1999 VA Claim Received on: 18 June 1999 ( Dept of Veterans Affairs New Orleans, LA ) ATTACHMENTS: VA Form 21-526 Pg. 7 https://drive.google.com/open?id=1bHb95IPMv6DGTVftK2qLeoYo-rv1miAv VA Form 21-526 Pg. 8 https://drive.google.com/open?id=1cWw-3sJygTIhnCgrRZFl4B7XSXC0nnE- VA Form 21-526 Pg. 9 https://drive.google.com/open?id=1P8tgJ0rcUz8MJoInHEMLuv06raHckdZK VA Form 21-526 Pg. 10 https://drive.google.com/open?id=15P1YoMfREici-kHFHgbz1TttyuzCMLim Authorization and Consent Included: VA Form 21-4142 Pg. 1 https://drive.google.com/open?id=1YXTaDasjAdrfXN8abclQX9a_8v7kM5G4 VA Form 21-4142 Pg.2 https://drive.google.com/open?id=1Ux9UvrEplp2tTkKc6xrZsMCkUSi2e0z4 ** ( Notes of Interest ) ** Supporting Evidence Attachments: 1) Certified copy of DD 214 2) Copy of Discharge Account Summary ( Severance Pay ) ** ( My Certified True Copy from SMR ) ** 3) Copy of Findings of the Physical Evaluation Board ** ( My Certified True Copy from SMR ) ** 4) Copy of SMR's to support S/C Claim ** Physical Evaluation Board Decision ** Pg. 1 https://drive.google.com/file/d/1Ius0W2ZDp-Ls1_fiQxoqfxRWBSor_viU/view Pg. 2 https://drive.google.com/file/d/1fYqy9fh6kjD0-cXAfK_T6KGoyszVeJNP/view Pg. 3 https://drive.google.com/file/d/1DsAwqqLecFc6C_HsZghIaZ7D33E37Qf6/view Pg. 4 https://drive.google.com/file/d/1UJOIGk1DJuNKNR-RRgfXIswVjWLex_jF/view Pg. 5 https://drive.google.com/file/d/1h6GgoGlDbJ9sEOT7V1CXorWXEKB5rxG4/view All Evidence and Supporting documents where sent in along with the Authorization and Consent ( VA Form 21-4142 ) for Release of Medical Records on June 15, 1999 **** Dept of Veterans Affairs New Orleans, LA **** Intake of Evidence for VA Claim for Compensation for Albert Dodd Dated: 18 June 1999 **** Timeline for Review of Evidence and Decision **** June 18, 1999 VA Claim Received June 25, 1999 VA Claim Reviewed https://drive.google.com/open?id=1LaYkJdHDmZ9ofzA8CJD7ZTCNwOqzVX9N July 08, 1999 Rating Decision ( R.M. LaCOMBRE, Rating Specialist ) Rating Decision Pg. 1 https://drive.google.com/file/d/16cS_DJ6QCut61LVj-jbzolQghHh4StDF/view Rating Decision Pg. 2 https://drive.google.com/file/d/1MfG-kcASP_2lruDY22eSMGCgKbI6x-_b/view Rating Decision Pg. 3 https://drive.google.com/file/d/1pUJXAHT_Zguk0WR2R4xTEi8c0EAXLgHs/view July 10, 1999 Compensation and Pension Award **( VA Form 21-8947 ) ** Signed into record https://drive.google.com/file/d/1JP-MXHlCsjsGlL9M9qP09XSK_OJJC14P/view July 12, 1999 Notice of Decision mailed out **( Cover Sheet ) ** https://drive.google.com/file/d/1OG7fNoJWMzF79NQ1AI04Z-wz5QrspY7g/view **** Questions for CUE **** 1) Duty to assist **( Did not attempt to help get copies of Hospital stay )** 2) Duty to assist **( Failure to assist by not scheduling a medical exam for current medical condition(s) )** 3) No Development Letter **( Failure to Notify Veteran of any further evidence needed to substantiate Claim )** I Albert Dodd do swear that all information is correct and included. If you or someone you know has information that would help me in getting the VA to correct this wrongful Decision please post your comments.
  16. Looking for recommendation for an attorney for a TBI claim that is well documented with an neuro psych exam. I am service connected back to 2008 but I believe I was low balled at 40% for TBI. Generally describing the results, the Exam notes severe and moderate in the results for memory and other cognitive and executive function. I asked for a reconsideration based on the difference in the test results and the VA schedule criteria on my own but got denied and gave up. I should have kept at it but I think getting an attorney is the only way I am going to make any progress. So here I am doing what I should have done a few years ago. Does anyone have a recommendation for an attorney that handles TBI CUE? I found some TBI articles posted by Hill & Ponton out of Florida. So many out there. Thanks
  17. Happy Thanksgiving to all my Hadit.com friends.I don't file very many CUE claims but when I do, I drink Dos Equis beer and turn on the fire hose as I did here trying to get something to stick. Boy howdy did it stick. Every error I pointed out was duly noted and addressed. The gentleman I represent is severely disabled. VA did their level best to take advantage of his pro se wife's absence of VA knowledge and deprive her husband of his lawful benefits. She filed for advanced A&A SMC (t) but he served in Vietnam-not post 9/11 and is not entitled to (t) by law. Fortunately, she found me here on Hadit and contacted me to right this injustice. Instead of inferring the obvious entitlement to SMC r(1) rather than (t), they continued to deny for years. I immediately realized she needed VA to acknowledge the diagnosis of Parkinson's/LOU of lower extremities due to AO first and then put the carrot in front of them to lead to SMC (o) and then the pyramid to r(1). They chose to call it CUE which I disagree with but the result is still identical to what I sought. If his spouse had filed for Parkinson's in 2012 when they first figured the loss of use out, his effective date would have been 2012 and his retro would have been about $450 K for those five prior years. As it was , I was able to get it back to 3/2016. I'm debating filing a NOD on this one. Naw-just kidding. Ladies and gentleman Vets, this is exactly why Theresa invented Hadit.com and why I began asknod.org in 2008. What you don't know can hurt you. I'm blessed to be able to help others. I live that sentiment daily. I only wish these assets had been available to me in 1989. Win or Die (trying) r1 redacted.PDF
  18. JustGettingStarted

    CUE for Peripheral Neuropathy

    If I claimed "Neck Problems" when I retired in 2009, and I was diagnosed with the symptoms of peripheral neuropathy during my C&P exam, should I have been awarded peripheral neuropathy in addition to the cervical spondylosis I was rated for? Below is the CUE I just submitted along with all the medical records. I have to say, my new VSO, the local county guy, was a big help. He said I might have a problem since I originally claimed "neck" and not "radiculopathy", so I attacked that issue head on in my claim. The claim is now in eBenefits being reviewed. Hopefully it won't be combined with my other claims, which could take a while although the VA has all the evidence and I have completed all my C&P exams. MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR I am requesting a motion to revise the date of a rating decision made by the St. Petersburg, FL VA Reginal Office on February 10, 2017 concerning bilateral peripheral neuropathy of the upper extremities. I am requesting a new date of 1 May 2009. The decision in question is for myself, JustGettingStarted, VA File Number #########. SPECIFIC ISSUE CHALLENGED: Upon my retirement on 1 May 2009, I was service connected for Cervical spondylosis at 10%; however, I should have also been serviced connected for bilateral upper extremity radiculopathy (peripheral neuropathy) related to the cervical spondylosis. This motion alleges specific errors of fact or law and why the result would have been different were it not for those errors: ERROR: The VA recognized symptoms of bilateral radiculopathy in my upper extremities during a peripheral nerve C&P exam conducted on 20 July 2009 but failed to provide service connection or a rating. In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). In addition, the VA failed to apply the applicable, existing regulations or statue at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992). FACTS: 1. In 2008, when preparing for my retirement physical, I claimed "neck" problems. My miliary doctor clarified "cervical disc herniations with radicular symptoms" on the same document (Attachment 1). 2. In my 2009 C&P exam it is stated “A Bone, Hand, Joint, Peripheral Nerves, and Spine Worksheet should be completed for this patient” (Attachment 2). Both the Peripheral Nerve and Spine worksheets say to see the Bone Worksheet (Attachment 3). On the Bone worksheet, the examiner states “bilateral hand numbness”, “numbness in the dorsum of her forearms”, and “pain radiates into the bilateral arms”. All are symptoms of bilateral upper extremity radiculopathy. It is also noted that I was taking Motrin and Neurontin for the nerve pain (Attachment 2). 3. On 5 Dec 2016, I had a C&P exam for peripheral neuropathy that states “Chronic neck pain radiating to the left arm and right hand numbness since 2000”. (Attachment 4). After this exam, I was service connected for left and right upper extremity radiculopathy and rated 20% bilaterally. 4. Peripheral neuropathy is supported by a long medical history documented in military medical records to include MRIs (Attachment 5). These records were available to the VA during my rating decision in 2009. In summary, the path to this error is very clear. My medical records from 2000 to present clearly show signs of bilateral upper extremity radiculopathy supported by x-rays and MRIs. I claimed this as a neck problem when I retired in 2009 and it was clarified to include “radiculopathy” by my military doctor. In 2009, the VA ordered exams for Peripheral Nerves, Spine, Hands, and Bones. When rated in 2009, somehow the radiculopathy was overlooked when it became part of my Bone exam and not reported separately on the Peripheral Nerve exam. The symptoms continued after this exam and I had the radiculopathy properly rated in 2016 by a VA examiner who states I had the symptoms since 2000 based on the medical records provided to him. The VA clearly should have provided service connection and a minimum 20% rating for both right and left upper extremities based on all the medical information that was on hand during the 2009 C&P exam. This request for a new rating date of 1 May 2009 for bilateral upper extremity radiculopathy (peripheral neuropathy) at 20% and meets all qualifications for Clear and Unmistakable Error: - The VA had all evidence in hand, including military medical records and a C&P exam, when they did not provide for service connection and a rating for peripheral neuropathy in 2009. - The statutory or regulatory provisions extant at the time were incorrectly applied when the VA failed to determine all potential claims raised by the evidence at hand. - The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. - The determination is based on the record and the law that existed at the time of the prior adjudication in question. I request your favorable consideration in this matter. JUST GETTING STARTED 17 July 2017 Five attachments 1. Military separation physical 2. 2009 VA C&P exam for Peripheral Nerve and Spine 3. 2009 VA C&P Bone exam 4. Excerpt from 2016 VA C&P exam 5. Military medical records, peripheral neuropathy
  19. Hello, I am seeking help on reopening or CUE-ing a denied claim from 2015. I gave up fighting for a while and just recently had a claimed competed. I am seeking one of the toughest claims to get connected for (sleep apnea) and just wanted to see what you all thought of the denial reasoning and DBQ? I had a chance to look at some of my STR's and they stated a few times untreated hypertension which I wasn't aware at the time was resulting from OSA which I was diagnosed with four years after leaving the military. I am still waiting on a c-file that I put in for as of June. I have also gotten together two buddy letters and was wondering if you all think I should go ahead and spend the money for an IMO. I am currently using a CPAP after being diagnosed on 2005. Please forgive me if I am all over the place this is my first post though I've been lurking for a while. :)
  20. I uploaded (last week) some of the decisions my late husband had gotten and Berta spotted a couple CUEs and gave me some help in drafting them. Berta if you are able to help with a few more questions Please? I have only 2 more days till my year is up from the DIC/Accrued benefits claim where DIC was awarded and Accrued denied saying there aren't any. At that time also, I intended Substitution but the VA form got separated (my fault) and didn't get submitted. I, however, wrote it into the 21-534EZ form and checked it. I also included a cover letter that said explicitly I was substituting for any and all accrued benefits... They didn't address substitution in their decision. Now with the CUEs which aren't an accrued yet, do I need to address those 2 forms immediately before the deadline? Here are some questions I still have if you could clarify these for me please: A. Is a NOD for accrued benefits claimed with DIC a year ago needed – to appeal their conclusion that there are no accrued benefits? Would any backpay from these CUEs be considered accrued benefits that I would have to NOD the decision now for? B. Is Substitution needed to do CUE claims or to receive any backpay on them? C. What happens when future presumptions of ao are added to the list going forward (as a surviving spouse) does it affect anything I can act on? 1. Conditions claimed before – either rated or denied sc 2. Would conditions listed in the C-File but never claimed come into play ever as a presumptive? D. If CUE is successful: 1. then qualifying for housebound or A&A will need to be judged and evidence has never been presented before… a. does the judgement come only from the C-File? And if so, should I include printouts from C-File to bring attention to issues pertaining to them? b. Can any evidence be added (from that date and before) since it was never considered before? And if so, do I include it with the CUE claim? E. IHD was first decided as 30% and went back to one year prior to our first claim – effective 2004…the bump up to 60% was effective . But the 100% was effective 2006…Should any of those effective dates be different because: 1. SSDI was in place for IHD qualification date of 12/2000 2. TDIU decision being effective 2006 (but he was unemployable per SSDI in 2000?) 3. 100% decision? 4. 100% effective date adjusted back due to Nehmer 2010 addition listing it as a presumptive 5. Combination of all the above? F. Many of the evidence documents we submitted are not in the C-File and none of the forms we submitted are there to prove what we submitted or said. Is that normal? G. Also, the only SS docs in the C-File are the ones where I outline his conditions and behaviors in answer to the many questions on the intake paperwork for that SS claim. There’s 4 pages of handwritten (including along margins due to space shortage) that I doubt anyone is going to wade through but it’s filled with problems he was having. Should I type it all out and attach it to the handwritten forms? H. We submitted the whole SS file but can’t prove it. We even wrote a letter to our Congressman to help us get a particular letter sent to us by SS along with their decision listing a myriad of restrictions to employment they concluded for him. I couldn’t find it and neither could SS but the Congressman did try for us. I have those communications too, but don’t want to drown them in paperwork with this claim. Any thoughts? Again, thank you Berta. I did try the other people you suggested without success. And thank you to everyone here who has helped me or does going forward!
  21. First thank you for creating this page. It's been a twenty years fight and reading these pages has made me feel for the first time I'm not alone in it. Active Army 88-92. Last six months in Egypt on a MFO tour. While there I got very sick. It was my last six months of service and ETS two weeks after returning to FT Drum. Six months after I got out started get sick again. Diagnosed with Ulcerative Colitis. Fought it for two years but lost and had my colon removed. Started developing other issues very similar to what they were calling Gulf War Syndrome. Applied for DC in 1997. I was denied do to lost medical records. Applied again in 2004. Again denied because of lost records. I had no new evidence to appeal and given up any hope. Family convinced me to try one more time this year. Just had my exam and they found my records. They made service connection. Now my question is, because they found service connection with my service records do I have case for cue going back to 1997 since they lost my records for twenty years? Also should I fight my rating first then go after the back pay? I'm not sure what to do next other than get an attorney. Sorry if this is too long and if this has been addressed already. I couldn't find a similar question or case. Appreciate any help or advice.
  22. I know I've been asking a lot of questions lately, but before I move out of country, I just want to have loose ends tied up. I was granted non-service pension 100% and housebound after my first VA experience and C&P in 2010. In 2014, my service records and Cfile were examined thoroughly and the doctor wrote like a 5 page reason as to why I was service connected. The importance of this post is that I got SSD in late 2012, and the VA slapped me with a $34,000 debt because I had been paid non service pension since 2010 at a higher rate than I should have with back pay from SSD. Now that I've reviewed my service connected raters notes, and how detailed they were regarding service records, prior treatments before 2010 when I filed for VA benefits, and my CFile, I am beginning to think my first eater did not follow any protocol. As I said, my last eater who granted me service connection documented it well. This is the only sentence in my first claim to the VA from the first C&P examiner. "There was no CFile to review on this patient at the time of exam." Hell, I had like 9 conditions, one of which I'm service connected for now based off of my service records amd prior treatment facilities before the VA. Is this a CUE or just a lazy rater? The report of my C&P listed below are regarding my entitlement to ANY Va rewards, which happened to be non service connected even though my current service connected is listed.
  23. Hello All, Break down of my ratings over the years 2000 - 10% Degenerative Miniscus Bilateral & 10% Tinitus 2007 - Increase for knees from 10% to 20% due to VA mistake of ratings both knees together 2010 - 0% lower back, as a secondary to my knee problems 2011 - 20% lower back increase, due to evidence of range of motion and herniated discs, retroactive to 2010 (Once again VA did not review all the evidence) (40% rated) 2016 - 20% left knee, 20% right knee, 10% left leg sciatica, 10% right leg sciatica I am now 70% rated, still waiting for the SOC to be released (but there are still 6 claims that have not been completed) The letter from the VA states Clear and Unmistakable errors is found in the evaluation of the Degen Arthritis of the Left & Right knee, due to locking, pain and effusion. The retroactive increase of 20% is established on May 1 2013 (Left Knee) and Jun 11, 2013 (Right knee) This is where the first issue is, the right knees date is incorrect as they used the last time I filed for a knee increase claim (denied of course), but the dates are still wrong. The Jun 11, 2013 is when I had surgery on my knee and was 100% rated during that month. The locking, pain and effusion have been stated during every C&P exam and is in every SOC dating back to 2000. I have filed a NOD for Effective Date and supplied all medical reports, VA visits, C&P exams back to 2000 and have asked for the Effective date to be Feb 20, 2000. If the VA finds a CUE on their own, does that help my case in the Effective Date NOD? Is there a cutoff on how far back the VA can retroactive a disability? Finally received the Final Decision and case is now closed.20% Degenerative Disc Disease of the Lumbar Spine 524220% Deg Arthritus of the Right Knee 5010-525820% Deg Arthritus of the Left Knee 5010-525820% Deg tears, posterior horn of the medial menisci, bilateral knees 5257-501010% Radiclopathy (Sciatica) Right extremity 852010% Radiclopathy (Sciatica) Left extremity 852010% Tinnitus 62600% Residual scar, left knee surgival debrigement 780570% ratedI just filed my NOD for an earlier effective date, due to the CUE (Clear and Unmistakable Error) that the VA found during my claim review. CUE was found due to "locking, pain and effusion of the L/R knee)Because of the CUE they set the effective dates of Feb 2013 & May 2013 (Right and Left knee), but the RO should have reviewed all of my filings and original approval of 1/25/1999.Each one of the reviews and documented notes states Locking, popping, swelling, instability and pain.I also called the VA today to see what the next steps were and the lady told me to file the NOD and she was sending a request for review of the CUE effective dates.Also the VA did not evaluate my Bilateral Hip Condition, which was part of the claim (that is now closed).Has anyone else had the VA find a CUE? Was it in your favor or theirs? Did you get an earlier effective date?Thank you
  24. I filed a claim for hypertention in april 2015. My claim was denied in Oct.16 stating that it was not sc and no evidence in my medical records. I went through my smr and found over 7 times that my pressure was taking and it read higher than 120 and numerours times in the 140. What should I do now? Any advice is appreciated. Thanks
  25. paulcolrain



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