hypertension Opinion On Cue

[Ricky]

In Jan 05 when I had my stroke they quickly SC'ed it secondary to my SC hypertension and DMII. However, from the start they only awarded a 10 percent rating. DC 8008 plainly, in black and white, states "rate 100 percent for six months, then rate residuals min 10 percent". Now since they did not rate my claim at the 100 percent level are required by 38 CFR DC 8008 is this CUE. I think it is as it is a violation of a regulation. There was no question on medical evidence and they did SC it - they just plain out did not provide the six months at 100 percent as required. In providing me the 10 percent rating, which should have been 100 percent for six months, they never conducted a follow-up C/P to rate the residuals. Just wondering.

Although I have filed the form 9, Jan 06, my file is still at the VARO. I was told today that the file had been signed out by a DRO on 5 Nov 2007 which indicated to him that she was reviewing the claim for some reason or another.

If the failure to comply with a regulation is CUE then I want to submit the CUE claim before they certify the file to BVA. That way it will keep the claim at the VARO and prompt another look and decision by them. If it goes to the BVA then I can not claim CUE by the VARO to them. My understanding is that if I do such a thing the file will probably be remanded back to them after the BVA decides on the other issues contained the Form 9. Below is a cut and paste of the appropriate DC from 38 CFR

8007 Brain, vessels, embolism of.

8008 Brain, vessels, thrombosis of.

8009 Brain, vessels, hemorrhage from:

Rate the vascular conditions under Codes 8007 through 8009, for 6 months 100

Rate residuals, thereafter, minimum 10

[Pete53]

Ricky:

Sorry I am going to leave your answer to others but I just wanted to say it looks good and I wish you the best.

Pete

[jbasser]

Ricky, that cue would be along the lines of procedural error. Not following the regs as they are stated and in this case "clearly stated" constitutes CUE in my opinion.

I cannot believe a DRO reviewer would let this proceed.

How can they rate the residuals if you have not been examined.

Buckle down and go after them on this one.

J

[Berta]

Yes- I agree-this is a legal error- and suggest that you send them the regs to support your position-

This claim is not final yet due to the appeal-so it is not basis yet for a cue claim- but

I think as Jbasser said- this is a procedural error-and maybe you should call it that when you contact them- or ask them to CUE the other decision themselves as to the rating on it.

I asked VA twice over the last decade to CUE themselves and they did-meaning they did correct or alter their legal error- as I was still within appeal period and could not formally file a CUE claim on those issues.

Perhaps the DRO is reviewing this error but still I feel you should definitely point this out to them-

if they send it to BVA you could probably obtain a remand on this issue right away- but still-I believe in keeping stuff at the ROs because it all ends up there anyhow-from the BVA- usually.

Do you have a copy of the VBM? I will check it today as to "procedural error" and see what they say.

[Ricky]

Berta yes I have the VBM (new copy). If you recall some of my earlier posts the DRO is looking at the file again because they failed to provide me my DRO hearing for over 2 years. Only after I filed the form 9 (my time was running out) did they acknowledge the fact that I had asked for a DRO review with a hearing at the RO with a DRO. This hearing took place in April of this year. I did not bring up the CUE issue as a CUE at that point due to the fact I was afraid of introducing a new claim at that point. This thing has been going on for 4 years this coming Jan. I just wanted a decision. Now during the hearing the DRO did state that she had no ideal how the previous dro rated the claim without providing a rating for the residuals and that at least I knew more that he did.

Now the file has been stuffed some where at the RO. When I called yesterday I was told that the DRO had signed to file out on 11 Nov 07 so I guess she is finally looking at it.

Would you raise the issue and ask that she CUE the previous decision or just wait. I do not want it to go to the BVA to simply get remanded to the RO where it will sit for another 2 years. Since the file has been perfected does not that mean the decision of the RO is final?