Cue Held Up By Appeal

[Bossman]

VA presented me with a proposal on January 18th 2007 and I requested a hearing on January 25th 2007. I never received the hearing and my compensation was reduced from 80% to 60%. I found out that they made a terrible error (http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secc.doc) and I should not have been reduced.

Now, I have an appeal in with VA to prove to them that I had knee surgery to reattach my Quad tendons to my patellas (bi-lateral). My Doctor has already sent a letter by me that it is knee but when I got a copy of my C-file the letter was not there.

My VSO is telling me that I should wait until the raters correct my knee issue. I do not believe that is the case because they do not have the letter that they asked me to get to show that what I had was knee surgery. I am SC for my knees.

As my VSO explained it, I should wait until they settle the issue with my knees. If I changed to pursue the CUE (which would move me to 90%) they would have to remove my files to a different area to be worked and that would cause a delay with them recognizing that I had knee surgery even though they do not have the letter for my surgeon and over the last 10 days they have not requested it. I was told by my VSO to wait on the VCC letter. My P.O. Box is less than 2 miles away.

Am I being advised correctly?

[jbasser]

Check into Filing a Writ of Mandamus to get them to decide the appeal and the CUE.

[Berta]

"Can I also file for Social Security through VA even though ALLSUPS is handling a claim for me."

No- VA doesnt handle SSA claims at all- you have Experts with the ALLSUP people

"I went wednesday for orientation for State Vocational Rehab.

Also, on the functional capacity part of my Social Security form my doctor stated that I could not work a full-time job."

If in any way the doctor referred directly too your SC conditions to determine that-this is Golden evidence for the VA-for TDIU-

and obviously you can prove you did have surgery-----

I dont understand your CUE claim-

they must have this criteria-

1. Final and unappealed decision.

2. Legal (not medical) error in that decision (For example A wrong Diagnostic Code is a legal error, and errors in interpretation and then application of the regs -except for DTA regs)are legal errors.

3. manifested altered outcome (but for the CUE they would have paid you more comp).

[Bossman]

"Can I also file for Social Security through VA even though ALLSUPS is handling a claim for me."

No- VA doesnt handle SSA claims at all- you have Experts with the ALLSUP people

"I went wednesday for orientation for State Vocational Rehab.

Also, on the functional capacity part of my Social Security form my doctor stated that I could not work a full-time job."

If in any way the doctor referred directly too your SC conditions to determine that-this is Golden evidence for the VA-for TDIU-

and obviously you can prove you did have surgery-----

I dont understand your CUE claim-

they must have this criteria-

1. Final and unappealed decision.

2. Legal (not medical) error in that decision (For example A wrong Diagnostic Code is a legal error, and errors in interpretation and then application of the regs -except for DTA regs)are legal errors.

3. manifested altered outcome (but for the CUE they would have paid you more comp).

Thanks for your response Berta.

Rentalguy1 showed me some information that say that I do not have a CUE claim because VA did not set up a hearing for me. ADIM21 MR21_1MR sets the procedure and it is in my C-file and they did not follow the manual and reduced me anyway.

I did appeal the decision and requested a hearing to present in information that is already in my C-file but not used to make a decision. This is a DTA error/administrative. Rentalguy1 suggest that I file for an increase. This is already under appeal and I am not sure that filing for an increase will help me move up. I have been appealing for 4 years this month on 9 items and nothing has been adjudicated yet.

I am thinking or was thinking that since they did not give me the opportunity to present my information before reducing me eventhough I requested a hearing to present my information. I believed that was an administrative error and made me eligible for a CUE claim. Even the VSR said that "this is CUE". I now have real concerns about my Rep.

Yes, the form that my doctor filled out for SSI said that I could work for 5 hours, on that form it states that if the time that is put in by the doctor is less than 8 hours it is assumed that you can only work part time. I was denied for TDIU.

Another 21-4138 was filed 6/7/2007 this was a NOD. A De novo review was requested and if not favorable, I requested a SOC and a VA Form 9, to file my appeal to BVA. It referenced that I had received another letter dated 4/16/2007 with a 4/7/2007 rating decision lowering two of my conditions (the two that I asked for a hearing on)and my combined from 80% to 60%.

5/15/2007 dated Rating Decision, granting me 20% SC for instability of the right knee and uping my combined to 70%.

I had that same surgery for both knees. I also filed a VA 9 11/6/2006. I have not had any hearing since the spring of 2006.

Funny thing, I dont like typing or talking and I seem to be doing a lot of that lately(:-). I guess that it means that I am finally passionate about something, imagine that. People that know me wouldn't.

[rentalguy1]

Bossman...I'm beginning to get a bit confused, and I don't want to steer you in a wrong direction. Please give me the dates of:

The initial hypertension award of 80%

The date the VA proposed to reduce the hypertension to 60%

The date that you sent in an appeal of that reduction

The date that they actually reduced the hypertension

and, did you say that your 21-4138 requesting an appeal of this proposal to reduce was in your C-file?

[Bossman]

Bossman...I'm beginning to get a bit confused, and I don't want to steer you in a wrong direction. Please give me the dates of:

The initial hypertension award of 80%

The date the VA proposed to reduce the hypertension to 60%

The date that you sent in an appeal of that reduction

The date that they actually reduced the hypertension

and, did you say that your 21-4138 requesting an appeal of this proposal to reduce was in your C-file?

I ETS SC for hypertension @ 10% in 1978. I was increased to 30% in March 2004, I was also increased from 0% to 30% in March 2004. VA proposed to decrease me on January 18,2007, from 30% each to 10% each. I appealed on January 25, 2007 and requested a hearing to present information that they did not consider. By the way it is part of my VA medical records and in my C-file. I was reduced on both September 1, 2007.

Yes I did, I requested a hearing in January and filed a formal NOD in April after they sent another letter saying they would reduce me from 80% to 60%. And Yes, both 21-4138's are in my C-file.

[Bossman]

I ETS SC for hypertension @ 10% in 1978. I was increased to 30% in March 2004, I was also increased from 0% to 30% in March 2004. VA proposed to decrease me on January 18,2007, from 30% each to 10% each. I appealed on January 25, 2007 and requested a hearing to present information that they did not consider. By the way it is part of my VA medical records and in my C-file. I was reduced on both September 1, 2007.

Yes I did, I requested a hearing in January and filed a formal NOD in April after they sent another letter saying they would reduce me from 80% to 60%. And Yes, both 21-4138's are in my C-file.

Sorry rentalguy1, I was increased for Hypertension and Eczema in march 2004.