diabetes Is This Cue?

[Guest Morgan]

I have three days to send NOD to the RO. If someone would like to review and critique this , go for it!

I don't fully understand the timing to declare CUE, or even if this is one, but I thought I needed to address this error. It is currently lumped with diabetes mellitus at 20%.

Here's what I have so far:

As to lumping my renal dysfunction with my diabetes mellitus rating, this is in error, as the CFR says it is to be rated separately, and makes no further provision for doing otherwise in my case.

7541

Renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes. Rate as renal dysfunction.

My renal dysfunction should be rated separately, secondary to cardiovascular conditions, and in fact, has met the criteria to be rated at 100% (see attached IMOs):

Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular... (Emphasis added.)

As required in the CFR for a 100% renal dysfunction rating, the “markedly decreased function of kidney or other organ systems that precludes more than sedentary activity” is clear, as my main organ systems—cardiovascular and pulmonary—are each rated at 100% disabling and my doctors statements clearly declare each as causing a sedentary lifestyle. Common sense concludes that two organ systems rated 100% disabling would indeed substantiate “markedly decreased function of organ systems.” Even so, I have attached new medical evidence concerning both organ systems to further substantiate this fact.

Carrie

Edited November 10, 2005 by Morgan

[timetowinarace]

I'm just a newbie but from what I understand you have shown that the diagnostic coding is in error and because it pertains to the regulations and not a weighing of the evidence it is CUE.

I think Cue can be filed any time, but if you have time for a NOD you would probably want to send that and use CUE later if you need to. Allso they will concider the new evidence with Nod but I don't think they can concider knew evidence with CUE.

We'll see if I've learned anything when the people who know answer. lol

Time

Edited November 10, 2005 by timetowinarace

[Guest Berta]

Carrie- this is good and I would not only refer to the diagnostic codes and medical criteria and the regs you mentioned- right in the NOD but also I would also attach copies of them and also describe the medical evidence you are sending and why this is important to your claim.

Tell the VA you fully intend to continue to appeal any benefits that remain not granted and make sure you get either a Priority tracking slip or send it Certified to them.

When a claimant is within period to file a NOD they do not have basis for a CUE claim.

They have not received a final decision.

[Jay Johnson]

Carrie- this is good and I would not only refer to the diagnostic codes and medical criteria and the regs you mentioned- right in the NOD but also I would also attach copies of them and also describe the medical evidence you are sending and why this is important to your claim.

Tell the VA you fully intend to continue to appeal any benefits that remain not granted and make sure you get either a Priority tracking slip or send it Certified to them.

When a claimant is within period to file a NOD they do not have basis for a CUE claim.

They have not received a final decision.

Like I've said before, I'm not 100% certain, but I have been told by several people within the claims portion of the seattle RO that you can, indeed, file CUE while in your appeals process. Finality of a decision merely means that an RO has made a final binding decision on your claim. A CUE is not an appeal, it is a complaint about the failure to properly follow the regualtions in hand when the decision on a claim was made. I currently have both an appeal in for a hearing with a DRO officer AND 2 seperate CUEs in to the "coach" of review team 2.

This doesn't mean I believe I am 100% correct on this matter, but nothing posted to this forum would suggest I'm wrong. Although berta and others have posted things saying the decision must be final, there has been nothing posted as to what exactly "final" means and no one has posted anything saying that all appeals must be exauhsted, nor have they posted anything that says that your claim must have been through the BVA or court of appeals in order to file CUE.

Simply put, CUE is just an argument based solely on regulation violations of your case and has nothing to do with the merits of your claim...that is for the appeals process.

[Jay Johnson]

I'm just a newbie but from what I understand you have shown that the diagnostic coding is in error and because it pertains to the regulations and not a weighing of the evidence it is CUE.

I think Cue can be filed any time, but if you have time for a NOD you would probably want to send that and use CUE later if you need to. Allso they will concider the new evidence with Nod but I don't think they can concider knew evidence with CUE.

We'll see if I've learned anything when the people who know answer. lol

Time

Apparently, you can file a CUE along with a NOD/DRO/BVA. They are two completely seperate issues, handled by two completely different type of raters. Also, you can appeal both the CUE AND your regular appeal as two seperate issues to the BVA.

[Guest Morgan]

Berta,

This a strange circumstance. He had already received a final decision. I thought they rated him wrong on SMC (I think he should be at least R1), but the NOD time passed because I just didn't have time to deal with it. You know how time-intense a well-prepared claim is. But after his incidents with poor medical care, our senator got involved and suddenly the VA writes and gives us sixty days to bring more evidence. Unfortunately, my husband has been so sick I still haven't been able to do all I needed to with the claim until this week.

Something is going on because he is being treated like a king! They have given him every prosthetic device they can think of to help him, and he's having home health monitoring his medication, plus physical therapy 3 x week with a special Anodyne treatment for peripheral neuropathy--which is helping! And get this, they didn't even leave me out. I just got a call a few minutes ago from a woman at the VAMC who is setting up respite care for him so I can take a break! I'm used to fighting tooth and nail for everything, but I'm not even asking for these things. I just keep getting calls for delivery of this and that. I'm grateful he is being noticed and getting closer care, but man, oh, man, what's going on?

So, now about CUE. Then CUE is for reopening a disallowed claim? His claim was not disallowed, but I saw this error and thought it was a good time to bring it up. I just wasn't sure I needed to call CUE. I will add the statement about his intention to appeal anything not granted.

Thanks, Berta!

[Dorothy Kansas]

Carrie--I agree with you he should be receiving a R2 if you have physical therapy or any care being supervised by a MD. You can file a CUE anytime I always try to resolve the issue locally first,