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Eed Cue's


carlie

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So Carlie..are U saying that a CUE is hard to win?

I see it as a way to point out the systems flaws..for lack of better wording.

U tell me.

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  • HadIt.com Elder

CUE's happen but they are rare. The VA uses all kinds of tricks and deceit. You have to have them in a vice grip to win a CUE.

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They are hard to win and depend on using VA legalise,the regs themself , and case law to win them.

Vets have definitely succeeded in obtaining extraordinary retro checks due to CUE claims.I got over $40,000 in retro on one I had that the VA and the BVA denied in 1999 and then the RC awarded me a few years ago.

I posted some of those awards here at hadit-available under the search feature-one was 35 years of retro or more.

Edited by Berta
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They are hard to win and depend on using VA legalise,the regs themself , and case law to win them.

Vets have definitely succeeded in obtaining extraordinary retro checks due to CUE claims.I got over $40,000 in retro on one I had that the VA and the BVA denied in 1999 and then the RC awarded me a few years ago.

I posted some of those awards here at hadit-available under the search feature-one was 35 years of retro or more.

Hi Berta,

I just received a rating three months ago for Tinnitus. They made the effective date the day I last filed in 2006. I have filed two times before for hearing loss and Tinnitus. Both times only received rating for 0% hearing loss, the Tinnitus was ignored. What is the best way to apply for retro back to a previous filing date?

thanks.

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Elec,

If you were granted SC for Tinnitus (was it granted at 0 or 10 %) just three months ago,

I suggest you file a Notice of Disagreement with the effective date and clearly show in your NOD

the legal reason or reason's of entitlement to the EED. I would not let any more time drag by.

It might help you to study the Reasons and Bases section of the Rating Decision that granted your Tinnitus as SC'd. Figure out why VA finally at this point, admits you even had a claim for Tinnitus,

and exactly what evidence was used to produce this grant. Was that evidence already of record,

was the Tinnitus SC'd from cumulative evidence or new and material evidence ?

jmho,

carlie

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  • HadIt.com Elder

VAwatchdog has an article about a "Fast Letter" designed to slow down or overturn large retro awards of over 250,000. Anyone who has a retro or service connection that goes back over 8 years is subject to this review process. This would be awful for CUE's that go back a long time and involve a lot of money. You have to read the article.

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  • HadIt.com Elder

Pete

On my CUE claim the VA did use some very dirty tricks like throwing in a medical report that was done ten years after the CUE decision. I called them on that and they threw it out, but I expect more dirty tricks. I was service connected in 1973 for schizophrenia and when I filed a CUE the VA went back and tried to say my unemployability was due to a personality disorder. This is the kind of BS you can expect.

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Well, I'm looking at a $200K plus retro award for skull loss claim in 1976 and that the VA awarded service connection in Feb 2007 using under reasons and bases citing the same military service medical records that that they used in 1976 to award the Post Concussion Residuals. They never denied the claim for skull loss at all, just rendered a decision for the claim of Post Concussion Residuals and I claimed both the skull loss and Post Concussions at the same time on my claim form and had exams for both and the VA Dr's confirmed the skull loss and size along with the Post Concussion Residuals. The VA never mentioned the skull loss anymore other than stating it in the same decision narrative with the menition of the 4.5cm x 4.5cm skull defect due to craniotomy and crainioplasty while on active duty (which is 50% under DC 5296 in 38CFR at that time and still current to date).

So I filed a CUE for 60% since I was awarded 10% for Post Concussion Residuals which is a combined rating of 60% with EED back to 28Nov1976.

I used the below VAOPGCPREC 4-2004 Case Law on Cue Claims in my Cue Claim along with the award decision service the connecting skull loss based on the medical evidence of 1976 claiming it.

I should have them in a vice grip on this one. I don't see how they can wiggle out of it since this precedent mirrors my claim exactly and meets all three of the things in the precedent. A precedent should trump any and all of the VA's slick tricks. My Cue has been at the rating board since 9 July,2007 and one rater made a decision on 19 July, 2007 with no deferrals. Then the CUE claim went to a second rater for a second opinion on 24 Aug, 2007. I was told this was done for a second opinion. They should be able to grant what I ask sometime in November I would think and I don't see how they can get out of not complying with a case law precedent.

The case law precedent should trump all the VA's objections in my case anyway.

Exhibit: VAOPGCPREC 4-2004 dated May 28, 2004, Case Law on Cue Claims

Memorandum

Department of Veterans Affairs

Date: May 28, 2004 VAOPGCPREC 4-2004

From: From: General Counsel (022)

Subj: Subj: Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on CUE Claims

To: Chairman, Board of Veterans’ Appeals (01) Under Secretary for Benefits (20)

HELD:

For a final Department of Veterans Affairs (VA) or Board of Veterans' Appeals decision to be reversed or revised under 38 U.S.C. § 5109A or 7111 (clear and unmistakable error) on the ground that VA failed to recognize a claim for veterans benefits, it must be concluded that: (1) it is obvious or undebatable that, when prior filings are construed in the claimant’s favor, the pleadings constitute an earlier claim for the veterans benefit that was subsequently awarded by VA; and (2) VA's failure to recognize that claim manifestly affected the subsequent award of benefits. VAOPGCPREC 12-2001 is hereby superseded by this opinion.

Tim S. McClain

Edited by RockyA1911
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  • HadIt.com Elder

Thanks John regards the "fast letter" mention. Its a good reminder that new information is always forthcoming. What is your current take on "personality disorder"? I too had that bogus reply statement on my C&P claim and SOC "explanation", ha! Sure would love to get over that

Rocky; good luck with your efforts, your're in my thoughts.cg

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  • HadIt.com Elder

My current take on the personality disorder gambit is that the best way to fight it is to get a good IMO to rebut it. I think since Iraq war started over 22,000 have been discharged for PD. Many of these had PTSD. It is much cheaper for the VA and DOD to just label a soldier or vet a PD than to treat them and compensate them. The whole VA/DOD system is adversarial. Many thousands of vets have been screwed out of compensation by a corrupt and deceptive system. Most don't know that when talking to a VA shrink you may be digging you claim's grave.

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Rocky-good for you-

I used an OGC Pres Op too for my CUEs and also 4 BVA decisions that interpret this same pres op.

Oddly enough-when I filed a complaint with the OGC in DC this week against my POA I had to by way of the complaint attach other documents-

ironically the CUE and the OGC pres op etc as well as a claim that the VA has failed to decide in almost 5 fives.

It is a legal question issue and the RO should have sent it directly to the OGC-or denied it ---yet I have two letters from the RO promising me an administrative decision I have never gotten-I asked General Counsel

about 2 years ago to take jurisdiction over it but they couldnt- the RO has promised me a decision. but again- almost 5 years and it never came.

I also sent OGC- (really all this was for my complaint againt my Reps but lots came out of the woodwork)a letter from the RO VSM I received in Jan 2006 stating my issues and said my rep was present to define them t and here this claim that the VARO promised me a decision on was stated as "in appeals" yet I never got a decision.SOmeone from my POA allowed that inaccurate info to be in the VSM letter.They cant put a claim onto "appeal" status if they have never rendered any decision on it.

Ironically the OGC might well take jurisdiction over it now and that would be great although I want them to resolve the 23 page complaint against my reps that I attached 34 pieces of evidence too.

I realised -reading you post-that when you take a stand on something- it can ultimately begin to resolve many other issues too.

The day after my POA revoked my POA my claim went to a different DRO. This was the best news I had gotten in 4 1/2 years.

This whole POA mess I find myself in helps me to support my request to COngressman FIlner to propose my amendment to the VCAA. I am sending him this latest info tomorrow.

By the way my POA did not comply with Rule 608 and should never have revoked my POA as my AO claim is on remand. They cannot do that until they file Motion with the BVA and have "good cause" for the revocation. They never did that.

That- in the long run- could have added considerale more time to my AO claim- years in the system already because the POA does not know established VA case law-either regarding claims, and the VCAA and they dont even know the legal way to revoke POA of a claimant on BVA remand.

I am up against plenty here -the director and many vet reps named in my complaint-are all men paid by the state of NY -who consistently provided me with lousy representation and I kept extending them what I want from the VA itself-

Benefit of Doubt.

you would think they realised- since I do claims work myself- that of course I have plenty of Documentation that I sent to the OGC to prove they screwed up big time.

OGC said I would hear from them as soon as they got the complaint-filed under auspices of 38 USC 14.633.

Edited by Berta
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Two thoughts occur to me on your post, Berta:

1) At least to me, it was clear your POA did not deserve the benefit of the doubt, and I came to that opinion a very long time ago. I often wondered why you bothered with them at all. I think I even asked that question of you at one time. I know they can track claims and such, but it hardly seemed a worthwhile tradeoff for the damage they did to you. They did you much more harm than good, and I never saw anything constructive coming of that. It seemed that your dealings with them were as adversarial as with the VARO, and I wondered why you continued to bother with them once you had their number, so to speak.

2) The reason they are not openly cognizant or concerned about your ability to bury them professionally (if one really wants to look at them as professionals at all), I believe, is because they think they are untouchable, bullet-proof, and unaccountable for their actions. Will anyone hold them personally responsible for their ineptness and outright dishonesty? Will you be able to sue them personally, and get to their wallets? That's the only thing that matters, unfortunately, since they obviously take no pride at all in their ability to help disabled veterans and their families, and probably don't care one way or the other about public knowledge of their poor performance and lack of character.

Just my thoughts. I hope you can get to them in a way that really registers, both with them personally and the NY State VA Affairs Office as well.

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Thanks VAF-why did I stay so long- I knew one of them for over 20 years- he was former USAF Intell- a linquist like my daughter was for the AF-

the other one was also trying to become a personal friend of mine-

another reason- I can quickly forgive an error and then go forward-

they had opportunity all along to really correct their errors- I thought they would-and gave them many chances to do that-

also for the 7 years my daughter served she had to pay NYS taxes on her income as I have to do also-and of course she didnt live in NY while she was in the mil-

our taxes pay the salaries of their reps-

also some of their reps do very good claim work- they arent all dopes-

and then again I feel that a POA does not win a claim-the medical evidence does-

and in spite of their screw ups my evidence would prevail- it never reached the VA for years somehow-

I allowed them to either redeem themselves and help me or just keep digging their own graves-so to speak-

I was able to satisfy by documentation the conditions within Sec 14.833 of 38 USC and have already taked to Gen Counsel as to that- and I have a very valid complaint the OGC will look into.

As soon as I graduate in 2 weeks I will see my attorney for any potential cause of action I might have against them.

I have been staying with them hoping they would help me but also (I go to a military school and learned plenty there)I also prepared a flank attack by- for 4 1/2 years- accumulating evidence against them.

I was not the sole claimant they screwed. There are plenty of vets they deal with- my complaint named one other vet I am witness to who they intimidated and I know they messed up other vets claims too- that is all documented in my complaint to the OGC.

It is the principles of warfare- no one wants to engage in a battle but if that looks likely -you have to prepare a very ample weapons cache, and assess the enemys intelligence and communication ability, before you even develop the tactical plan of maneuver for the first attack.

I will succeed in getting this all resolved thanks to the USMC instruction I got at the American Military University for the past 4 years.

Edited by Berta
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I'm appalled at the way your acquaintance of 20 years and the other wannabe friend abused your trust in them. With friends like that, who needs enemies... It doesn't sound, however, like you were all that surprised, and by preparing for this for 4 and a half years, your expectations of them must have sunk to increasingly lower depths during that entire period. All this following the VA causing the death of your husband, and your having to fight them to admit it. You've got guts, lady, and as the wife of a disabled veteran, I keep you in mind every time the VA hits us below the belt with something that we've got to answer...

How did going out of their way to deny you your due process benefit them? Was it bonus money in their pocket? Some kind of accolade they received for preventing you from getting compensation, as if you were on some kind of VSO hit list -- resentment over the fact that you knew light years more than they did about the law?

On behalf of my disabled veteran husband and our family, I hope you seek personal damages from all of them and put them on the street.

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Thanks for your understanding-

this is my point too- this state has a lot of men and women serving today in Iraq and Afganistan- if they come back to NY they too could hook up with this POA-

As Dr. Phil says- "past behavior predicts future behavior"-I have no doubt they already screwed up some new veterans claims.

I am not at all worried about my VA claims-and better off now as the DRO has to deal with me and not them-in mu behalf.

I am concerned about any NY veteran or widow that acquires them as their POA.

I believe they do have some very good reps across the state-

but this vet org is almost a dynasty- and the director is appointed by the Governor I believe-

and although the Govs liason said my 2006 complaintto the Governor was "discussed" at a meeting- it might have just been laughed at.

I used to donate the VBM to the local office and only one rep there ever even looked at it.I cannot even think of coming here to give claims advise without a current copy of the VBM.

These boys needed a thump call.

I sent the OGC hard copy proof of their incompetenece.

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  • HadIt.com Elder

The idea of Volunteers fighting for claims against the VA is absolutely unsound. Finally Veterans have obtained some relief by allowing them to be represented by legal counsel. The present system is a charade and many of the so called Volunteers Service Officers are paid by Organizations that raise money to fund their organizations. The VA usually provides space and access

Many of the Service Officers are inadequately trained and feel that whatever answer they give a client is ok cause after all they are doing it for free. So they take a break and go down and socialize with the VA people who are screwing the Veterans.

If the VA wanted to be fair they would attempt a plan based on Social Security and actually review a Veterans claim and records and look for the benefits that were earned.

A few years ago a VSO told my brother that he would never get a Pension but we filed anyway provided a Medical Opinion and a Notarized Declaration that although married he did not live with his wife nor had he for 10 years. He was awarded a Pension in about 3 months.

Most Veterans who seek the help of a VSO are bewildered in financial trouble and Medical Problems and this system preys on them.

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Elec,

If you were granted SC for Tinnitus (was it granted at 0 or 10 %) just three months ago,

I suggest you file a Notice of Disagreement with the effective date and clearly show in your NOD

the legal reason or reason's of entitlement to the EED. I would not let any more time drag by.

It might help you to study the Reasons and Bases section of the Rating Decision that granted your Tinnitus as SC'd. Figure out why VA finally at this point, admits you even had a claim for Tinnitus,

and exactly what evidence was used to produce this grant. Was that evidence already of record,

was the Tinnitus SC'd from cumulative evidence or new and material evidence ?

jmho,

carlie

Hi Carliee,

Sorry for any delay in responding, I've not been on line much as I've been moved to the grave yard shift.

Anyway, here is the text from my rating:

Please let me know what you think.

INTRODUCTION

The records reflect that you are a veteran of the Vietnam Era. You served in the Army from October 18, 1964 to August 29, 1967. We received a request to reopen a previous claim on December 22, 2006. Based on a review of the evidence listed below, we have made the following decisions on your claim.

DECISION

Veterans Claims Act of 2000 (VCAA) dated March 15, 2007

VA Audiological Examination, VA Medical Center, Reno, dated June 27, 2007 .Prior VA Rating Decision and the information it contains therein dated November 11, 2006

REASONS FOR DECISION 1. Service connection for tinnitus.

Service connection for tinnitus has been established as directly related to military service. A medical note dated 1970 reports occasional ringing in both ears. Military noise exposure is reported from working on the flight line and post military noise exposure is reported as an orderly for 1.5 years and post office computer work for 10 years. Recreational noise exposure is reported from using power tools. High frequency hearing loss was noted from audio grams during military service. It is the examiners opinion that your tinnitus is more than likely caused by or a result of military noise exposure.

An evaluation of 10 percent is assigned from June 21,2006 which is the date we received your original claim for service connection for tinnitus. An evaluation of 10 percent is granted for recurrent tinnitus. Please note that a 10 percent evaluation for tinnitus is the highest evaluation for tinnitus in the current VA schedule of ratings.

2. Evaluation of bilateral hearing loss currentlv evaluated as 0 oercent disabling

The evaluation of bilateral hearing loss is continued as 0 percent disabling. {38 CFR 3.321(a); 38 CFR 3.321(:unsure:(1)}

Examination findings show the left ear with 96 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 1000 Hertz (Hz) is 20, with a 65 dB loss at 2000 Hz, a 70 dB loss at 3000 Hz, and a 85 dB loss at 4000 Hz. The average decibel loss is 60 in the left ear. From Table VI of38 CFR 4.85, Roman Numeral II is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. The left ear is considered the poorer ear for 38 CFR 4.85's Table VII. The right ear shows the percent of speech discrimination is 96. Decibel loss (dB) at 1000 Hertz is 20 dB, with a 40 dB loss at 2000, a 70 dB loss at 3000, and a 85 dB loss at 4000.

The average decibel loss for the right ear is 54. From Table VI of 38 CFR 4.85, Roman Numeral I is determined for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. A 0 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row I, the better ear, with column II, the poorer ear.

An evaluation of 0 percent is assigned from November 3, 1969. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains the regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library, or visit us at our web site, www.va.gov.

I have always filed Tinnitus and hearing loss!

The Tinnitus part of my claim has gone mostly ignored in 1967 and 1992 as well.

Suggestions?

Elect

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Elec,

Do you have a copy of the claim you filed in 1967 ? Did you claim either hearing loss,

or Ear Problems, Tinnitus, ringing in the ears or a concussion ???

In 1967 I believe head trauma or concussion may have been required for Tinnitus to be

awarded --- someone will jump in and correct me if this is wrong.

carlie

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"An evaluation of 10 percent is assigned from June 21,2006 which is the date we received your original claim for service connection for tinnitus. An evaluation of 10 percent is granted for recurrent tinnitus. Please note that a 10 percent evaluation for tinnitus is the highest evaluation for tinnitus in the current VA schedule of ratings."

Do I understand-you still have not gotten your money for the Tinnitus?????

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