Berta, ? On Cue For A Eed On A Current Decision

[Rockhound]

I filed a CUE claim in 2004 which was either completely ignored or was looked at as a claim to reopen with new and material evidence. That claim was decided Aug 2004. However, in the reason for decision, each of the reasons for reopening the claim were listed except for my SC nasal fracture, listed at that time 0%. In Aug 2005, one year and twelve days after the 2004 decision, I wrote a letter inquiring about my CUE claim and let it be know at that time, that I believed that they had mistaken my CUE claim for a reopening with new and material evidence and also brought up the question in that letter, that their had been an implied if not outright claim regarding the SC Fractured Nasal Bone.

As of this date, I have heard nothing about my CUE claim and they list no such claim as ever having been filed, yet I have the date stamped letters in support of such a claim and also the letter of inquiry which is also date stamped as having been received by the VARO.

To date, I filed a claim for increase for my SC fractured nasal bone with a deviated septum due to trauma, DC 5299-6502 January of this year, 2008. I received a decision Sept, 2008 and was awarded an increase of 10%.

However, due to the mixup of the 2004 claim, and the resent information I have found, I believe that the effective date should awarded back to Aug 2004 and not Jan 2008 that they say the claim was reopened with new and material evidence. I believe the 2004 claim was never adjudicated, that their was no final decision until the Jan 2008 claim was decided. That is to say that the claim in 2004 remain open on the issue of the increase for the SC Fractured Nasal Bone and Deviated Septum.

I also believe that the CUE claim also still remains open, but I would rather withdraw the CUE claim part of it, so that I might refile on at a later date with more pertinent facts, which would have a better chance at winning. This CUE claim I filed in 2004 needs more work on it. I knew vary little back then and see that it needs a whole lot more development in order to stand any chance of survival should it have to go as far as the courts.

I need your imput or that of others who understand CUE claims or claims that appear to still be open for adjudication. Also, I am trying to find information on a higher rating than what the disability schedule allows, because in the schedule it only refers to fractured nasal bone with deviated septum due to trauma, but I also have to be treated with medication, to relieve symtoms, to open, even if it is only partially effective, blocked or partially blocked nasal passages. One medication is an antihistamine and another is a corticosteroid at its highest recommended dosage. These medication are taken daily and without them, my Dr would have to find an alternative way to treat an otherwise NSC breathing problem. I feel that the added use of medication should raise the level of disability to at least 30%.

Any help in this matter would be most appreciated.

Rockhound Rider :P

[Berta]

"To date, I filed a claim for increase for my SC fractured nasal bone with a deviated septum due to trauma, DC 5299-6502 January of this year, 2008. I received a decision Sept, 2008 and was awarded an increase of 10%."

If the medical evidence showed this same disability should have been rated 10% in a past final decision -that is a CUE-but it would have to specifically state the regs that were broken at the time of alledged CUE-

meaning somehow VA gave you a diagnostic code and rating that did not comply with 38 CFR DC and ratings at time of the past final denial.

There is nothing such as an implied or inferred CUE claim- I have seen decisions where the veteran was not quite clear on the facts but the claim was clearly a claim of Clear and Unmistakable Error in a past final decision and the VA did proceed with the claim.The legal errors have to be clearly identified.

For example-(the VA used my AO claim evidence recentlyfor my CUE claim-my Legal evidence was completely ignored -I have asked for DRO review on that)

I used the instances of legal errors in the 1998 unappealed decision (my rep questioned the decision but never advised to file a NOD- he should have-he focused on the award)

I scanned and inserted into the claim exact VA case law and regulations from M21-1-MR, 38 CFR, etc that showed my husband was denied SMC consideration in which VA itself stated he was eligible for SMC.

I also sent the final rating decision which also supported the CUE claims.

The retro that was manifestl;y altered at the very least was the S award -a few thousand bucks and at the highest level- R-1 or R-2-a five figure award.I told them to keep the obvious "S" award but proceed to a higher SMC rating.I even enclose the figure I had arrived at under R-1 retro.

This claim satisfied with evidence the 3 prongs of CUE that we have discussed ad finitum here already-

In your case- you have to somehow prove that you did file a distinct CUE claim or you have to file it again-

If you tell me what VARO this is I might be able to find a Fax number for their director- I would suggest to fax them what the VA is saying as to they dont have the CUE-

send them a copy of what you files and the mailing proof they got it.

This is what Reps are for- almost all vet orgs have someone in an office at each VARO who can access your file and see if in the fact the CUE claim is in your file-

This is why in all of the past CUE info here I have said to state This is a Claim of Clear and Unmistakable Error under 38 USC 5109A ,and/or 38 CFR 3.400.

A BVA CUE awarded to a schizophrenic vet which I posted here long ago- was quite a garbled claim-yet the veteran had clearly identified and raised legal errors-as best as he could- and the BVA awarded the claim.

If VA has had a claim simce 2004 that has not been acted on at all- this is a situation where a Writ of Mandamus should be filed.

Edited September 28, 2008 by Berta

[Rockhound]

I guess I am having a problem writing what I mean about this case. I'm saying that they didn't act upon the SC claim for increase for the fractured nasal bone that was filed with other parts of the same claim that where in 2004 I didn't realize it at the time, until I came across this letter of inquiry about a CUE claim I had submitted at the same time period, that I believe was combined with and treated like a claim to reopen with new and material evidence.

The claim for increase was not part of the CUE, I only made an inquiry about it, at the same time and in the same letter I inquired about the CUE claim.

I wasn't aware that the claim for increase of the SC nasal fracture was still unadjudicated until after I had submitted a new claim to reopen and had an increase award on record in 2008. I believe the claim in 2004 for increase was not adjudicated upon which, regardless of my new claim to reopen in 2008 the EED should be the date of the 2004 unadjudicated claim and not this most recent claim in 2008

I'm not concerned right now about the lost or unadjudicated CUE claim, I'm just interested in the current possible claim for an EED of my increased percentage claim for my SC nasal fracture.

I hope I have explained it better.

Rockhound Rider :P

[Berta]

I suggest that you file a NOD and tell them exactly how you told us that here. Enclose proof that you did file this claim.

And then if I were you I would consider getting a lawyer to handle this.

A friend of mine was very reluctant to get a lawyer-he is at the CAVC-

he kept thinking of the 20% fee but I felt he needed to concentrate on the 80% he might never see without a lawyer-

He finally obtained counsel and the lawyer already has found errors in the BVA decision to attack.

Lawyers can read.

(I dont mean that we can't read and we all know the VA cant read-just that a good lawyer just like a good IMO doctor- will see things we cannot see in these decisions.

[john999]

I second what Berta has said. Get the lawyer. They thrive on details and loopholes and they understand the law and thinking behind it. Things like due process etc. When does a vet get due process? Is it when they ignore his evidence or give the VA the benefit of the doubt?

[Rockhound]

Berta, John999: If I get a lawyer, do they work on consignment? They only get paid if you when your claim, or will I be stuck with the bill? We're only talking about a claim that has been denied at the VARO level and not the BVA, etc.Rockhound Rider

[Berta]

Right-if they take your case the contract will state their fee- it should be 20%-

I dont know how they handle any additional expenses if they themselves obtain an IMO for you or incur some copy fees with the VA or SSA.

A vet can retain a lawyer for one claim and keep a VSO for any additional claims.

As long as a NOD has been filed after June 20,2007 -a lawyer can represent you.

If you get a lawyer but feel uncomfortable with them, you can revoke them and get another one.

Talking to them by phone will give you an adequate picture of whether they know what they are doing.

Unfortunately a few lawyers without proper VA claims background are trying to rep vets and widows-

they must be fully proficient in VA claims case law etc in order to obtain your POA.

A lawyer I had who handled a contrual lease for me last year got very gung ho as we talked about the new lawyers regs-he is disabled vet himself and had a hell of a time at Buffalo VARO-where my claim was for over 5 years until recent remand-

he started pressuring me into coming in to sign stuff to give him my POA on my AO claim.His MOS is contract law nopt VA law.

I emailed him the actual lawyers regs that show what experience and background the VA wants from lawyers-

in order to rep vets- I never heard from him again.

Edited September 30, 2008 by Berta