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?

[Berta]

All I can add is that a Claim of CUE must be filed on a final decision BUT

you can sure ask the VA to call a CUE on themselves- as I did in 2005-

I recall another old claim I had and they cued themselves when they got my letter and as I mentioned here before the RC caught my denied CUE claim and in essense,years later, granted the CUE by calling the CUE on the VA.

Is this in fact a situation where everything is still open and therefore you can ask them to CUE themselves?

I wonder whether they sent you an appropiate VCAA letter on any of this-

Hupp V. Nicholson-I referred a widow here to Hupp-I was just reading Rich Cohen's take on Hupp (EXec Director and vets lawyer-NOVA)

the more deatiled a claim, the more detailed the VCAA letter needs to be

One of the judges in Hupp (CAVC) found that the VCAA notice lacked a thorough review of the record (this is WHY we get lousy VCAA letters and this causes the backlog at the BVA)

because the claim and standing evidence has to be actually READ before they send a VCAA letter-one of my major gripes-

they arent doing that in all cases-

In Hupp the widow claimed AO death due to CML a form of cancer -but not CCL- and the court advised this widow could substantiate the claim with medical treatise or studies.

I hope your VCAA letter was appropriate to these claims.

Unfortunately DTA errors such as the VCAA ,do not allow us to file CUEs on them-otherwise the VA would have CUE claims up the ying yangs.

Edited August 9, 2008 by Berta

[rentalguy1]

Excellent point, Berta. I went back and checked my reduction letter from 2004, and it is like any other claim in that the vet has one year to appeal before the decision becomes final. According to my letter, the decision becomes effective on the last day of the month of the proposed action. He receieved his final letter to reduce in April, 2007, so his effective date would be 31 April 2007. I believe that this would be considered final, since he did not appeal the "final" decision, and only appealed the proposal. The reason that the proposal was made effective is that he did not send in medical evidence to refute the assertion that his conditions had improved. According to the letter I received, this is the only way to turn around this type of action.

All in all, he does have a valid CUE claim on both counts of reduction.

[Berta]

OH! I got lost in that part- OK!!!!!

Thank you SHANE!

Now I get it- CUE!!!!!!

I was stuck on my interpretation of this:

"The proposal was to reduce a prior evaluation that I NOD'd"

[Angela]

Berta, You stated

"If Voc Rebah ever turned them down for Voc Rehab solely due to SC disability this is Prime FAcie evidence of TDIU-

If one is un -vocrehabable-one is unemployable."

How do you get a copy of voc-rehab record saying they can't voc-rehab you?

[Bossman]

All I can add is that a Claim of CUE must be filed on a final decision BUT

you can sure ask the VA to call a CUE on themselves- as I did in 2005-

I recall another old claim I had and they cued themselves when they got my letter and as I mentioned here before the RC caught my denied CUE claim and in essense,years later, granted the CUE by calling the CUE on the VA.

Is this in fact a situation where everything is still open and therefore you can ask them to CUE themselves?

I wonder whether they sent you an appropiate VCAA letter on any of this-

Hupp V. Nicholson-I referred a widow here to Hupp-I was just reading Rich Cohen's take on Hupp (EXec Director and vets lawyer-NOVA)

the more deatiled a claim, the more detailed the VCAA letter needs to be

One of the judges in Hupp (CAVC) found that the VCAA notice lacked a thorough review of the record (this is WHY we get lousy VCAA letters and this causes the backlog at the BVA)

because the claim and standing evidence has to be actually READ before they send a VCAA letter-one of my major gripes-

they arent doing that in all cases-

In Hupp the widow claimed AO death due to CML a form of cancer -but not CCL- and the court advised this widow could substantiate the claim with medical treatise or studies.

I hope your VCAA letter was appropriate to these claims.

Unfortunately DTA errors such as the VCAA ,do not allow us to file CUEs on them-otherwise the VA would have CUE claims up the ying yangs.

Berta, Thanks for your response.

Wouldn't the final decision come after the hearing officer received my information at the hearing that I requested?

[Bossman]

Excellent point, Berta. I went back and checked my reduction letter from 2004, and it is like any other claim in that the vet has one year to appeal before the decision becomes final. According to my letter, the decision becomes effective on the last day of the month of the proposed action. He receieved his final letter to reduce in April, 2007, so his effective date would be 31 April 2007. I believe that this would be considered final, since he did not appeal the "final" decision, and only appealed the proposal. The reason that the proposal was made effective is that he did not send in medical evidence to refute the assertion that his conditions had improved. According to the letter I received, this is the only way to turn around this type of action.

All in all, he does have a valid CUE claim on both counts of reduction.

Thanks for your response Rentalguy1,

My reduction actually took place on September 1st, 2007.

VA said that the reduction on hypertension would take place on July 1st. I received a 10% increase on the right knee to 20%. On Sptember 1st they started paying at 70%.