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What Can You Attach To A Cue?


Angela

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I just sent in my CUE but I included medical explanations from sites online. Will that information be considered NEW? It only explains the medial jargon used in my records. I didn't include any new exams or anything like that.

I also included some BVA decisions that also explained the medical jargon. Will they even look at those?

Angela

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I just sent in my CUE but I included medical explanations from sites online. Will that information be considered NEW? It only explains the medial jargon used in my records. I didn't include any new exams or anything like that.

I also included some BVA decisions that also explained the medical jargon. Will they even look at those?

Angela

§3.156 New and material evidence.

(a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108)

(B) New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501(a))

( c) Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim.

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001] [see Federal Register]

Cross references: Effective dates-general. See §3.400. Correction of military records. See §3.400(g).

Supplement Highlights references: 8(1), 47(1).

Edited by Wings
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Guest Jim S.

Angela:

I think you had better re-read 3.105 again. Claims based on CUE are decided on the rules, regs, laws extent at the time the CUE occured, also it is based on the evidence deamed to have been before the Rating officer at the same time. New evidence cannot be used since it was not before the rating officer at that time.

However, If your CUE claim is approved and you are SC, then if the rating does not relate to the severity it now shows, then new and material evidence can be shown to support an increase in disability.

If you have new and material evidence that supports your side of a difference of an opinion, then you could re-open the claim with that new and material evidence.

That is the difficulty in proving CUE. Even though New & Material Evidence coulod clearly show the error, the poloticians that set it up, made it so we couldn't and if an error occured, only the evidence and rule, regs,& laws at the time of the CUE could be used to prove your claim. It's a bummer but that is the way it is.

Jim S. :D

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A Cue is a legal error -not a medical one-

It is based on a legal error made by an adjudicator that caused a different outcome-for the claimant if it had not been made-

The VA claims they dont have my 2 CUES so I have them right here to re-send-

(I know they have them-my vet rep checked the files)

It is example of what I mean.

In 1997 the VA said the veteran was not eligible for Special Monthly Compensation in a posthumous award of 2 years of 100% PTSD retro.

The VA was aware that the veteran's death had been service connected under Sec 1151 and FTCA claim.

In 2004 they again stated that this veteran was NOT eligible under any circumstance for SMC.

He was- I sent them a copy of a letter to CHAMPVA in which the VA got them to deny my CHAMPVA (that was reinstated) as they said Rod's physical disabilities were 100% P & T under Section 1151.

That was correct-they forgot to tell CHAMPVA that he was 100% P & T SC for PTSD and also well over 100% under Sec 1151.CHAMPVA had that info but thought this was now erroreous.

The VARO Manager quickly corrected this all out when I made a big fuss.

My CUE -I state them simply-

1.gave the date of the denial of SMC (I attached the whole thing)-(final decision)

2.sent them the regs that provide proper consideration of SMC as inferred in all claims that warrant it-

100% SC plus about 200 % 1151 - is an SMC situation-(M21-1 Part 6) (Regs they broke)

2. sent them an OGC precedential opinion proving Sec 1151 warrants SMC consideration- OG Pres Op #30-97.

3. sent them copy of their letter to CHAMPVA which was the first VA proof I had in 10 years that Rod's additional disabilities were Sec 1151s.

4. Stated that their lack of proper and legal application of 38 CFR 1114 prevented me from receiving 2 years of retro SMC due the deceased veteran at time of death (which I believe would be the R-1 level) as accrued benefits under DIC regs.(manifestly different outcome but for CUE.

It is very short and nothing from the net would help me medically as they have all the medical evidence.

My other CUE- lack of proper rating on heart disease-

The veteran had heart disease, the VA failed to ever rate it (they misdiagnosed it)

in 1997 GC admitted he had misdiagnosed heart disease which was one factor that caused his death.

Many final decisions received with no DC code for heart-

VA must code all disabilities -especially if Sec 1151 ones-forget what reg that is-

SMC award would have to consider this additional disability-caused by VA itself-

manifestly more retro due the surviving spouse-

When an adjudicator starts to play around with a decision -they are using 38 CFR and M21-1.

Tell the VA what regs they broke-in using your medical evidence. This is the legal criteria for CUEs.

CUES aren't handled by doctors -they are handled by lawyers or at least VARO employees who understand VA regs and laws.(well- I hope that is true)

The wrong diagnostic code alone could potentially be enough to cause the vet a lower rating than the medical evidence warrants.

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Berta,

You misunderstood my question. I was not asking "what is CUE".

My SO also spelled out to me FORCEFULLY that it is a legal error, not a medical one. He tried everything he could while I was in his office to convince me not to file a CUE. But I insisted, and gave him the already written CUE claim.

A week later he called me at home and said that I had been screwed by the VA, that he thought I would win my CUE claim, and he was adding a cover letter of his own before sending it in.

Although that statement "legal error, not medical error" sounds cut and dried, in my case the medical records did not "exactly mirror" the wording used in the rating criteria". The VA's rating criteria wording is actually NEVER used by medical personnel in relation to my disability. The ONLY time a doctor would use the wording used by VA is when the VA specifically requests a YES/NO answer. So, using the definition "legal error not medical error", without defining what is "legal" for this disability, does nothing for me except perhaps say that "NO ONE WITH MY SPECIFIC DISABILITY NEED APPLY". This is what I thought when I got the original decision and why I didn't appeal at the time. I no longer accept that.

As far as I can tell, the RO has a duty to look at the evidence. They didn't consider it (believe it or not, this is actually documented in the decision), but they had it (I requested and received a copy of it from them before submitting my claim), and the evidence shows the level of my disability (I'm already SC), failure to rate accordingly is CUE. Any Doctor who reviewed my records would have rated me at 100 percent, however, a lay person might not because they most probably wouldn't be able to read the medical jargon.

My question was, Since I included definitions of medical jargon - I found the definitions online but they were part of medical literature available to any doctor or medical specialist at the time of the original decision - could those definitions be construed as NEW EVIDENCE. Any reasonable person would say no, but since the VA is frequently unreasonable, I wonder if there is a rule or reg concerning this.

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"Any Doctor who reviewed my records would have rated me at 100 percent"

and

"My question was, Since I included definitions of medical jargon - I found the definitions online but they were part of medical literature available to any doctor or medical specialist at the time of the original decision - could those definitions be construed as NEW EVIDENCE. Any reasonable person would say no, but since the VA is frequently unreasonable, I wonder if there is a rule or reg concerning this."

Angela - I dpnt know of a specific reg for that-

However-the CUE is within the statement "any doctor" etc........

BUT it is the Adjudicator that rated you-

The adjudicator used legal criteria (The schedule of RAtings)from 38 CFR.

That is how I saw the CUE in your claim-

they failed to apply the correct rating and this led to the wrong diagnostic code.

I would attach those definitions to the CUE and state that you are attaching them. It might well help them understand this-

Funny how your SO changed his opinion of your CUE!

I felt it was a great claim-Angela- it sounds like he is very supportive now-

I am sorry if I misunderstood your question-

this part:

"Any Doctor who reviewed my records would have rated me at 100 percent, however, a lay person might not because they most probably wouldn't be able to read the medical jargon."

The adjudicators are lay people-Veteran-this is the essense of many denials-

My Independent Medical Opinion wasn't considered in Sept and my vet rep went right to the DRO (the VARO Manager had just gottten my email -asking what the hell is this---when I got my Sept SOC)-so she was there too-

the DRO (on the job 3 weeks) told my vet rep and her VARO boss(I can see my vet rep rolling his eyes to Heaven) that she did not understand medical information so she never considered my $2,000 buck IMO.

I am still ticked that these are the people who control us- if they -even at a DRO level, cant understand medical evidence-

no wonder we all sit around waiting and waiting only to get crappy decisions.

Sometimes you have to tell them stuff like they are 12 years old.

I think it is a good idea- but I would ask your SO first- to send further medical explanation of your condition-that you mentioned you have-

I am writing a complete brief on cerebral ischemia from diabetes to support my IMO-from Dr. Bash-but I am explaining it like the adjudicator is 12 years old-it might never get read-

I reminded VA that the first diagnosis of Rods heart disease and Transcient ischemia and improper meds came from me- not from any VA doctor-those people are often illiterate but at least it will be in my c file if I have to knock down more medical crapola from them-and I see this in your case too-the medical explanation will be there as evidence in your c file-because

I think the medical literature you have is a very good idea-the SO I hope will agree-

Angela- does your SO have a SO office link right in your VARO?

Again- I am sorry I misunderstood what you asked-

Once some adjudicator starts to play around with 38 CFR to rate a claim and give a diagnostic code - they are using VA legal regs-and can set up a CUE if they are wrong.

B) B)

Edited by Berta
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Your CUE should be short and to the point. Explain to them the error or diagnostic code that you believe was in error and then tell them what you want them to correct and the precentage you believe should be the outcome of that particular ailment. A lot of information passes through those raters minds daily and they will forget who or what your concerns are as soon as they pick up the next C-File. Make sure you can get your point across without all the unneccesary additives, it only confuses them further!

Contact Berta via email. She is very knowledgable when it comes to the submission of a CUE and anything else that is VA related.

Swan

B)

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Berta,

My SO says that the VARO (Houston TX) won't even talk to him at all.

There is no need at all for you to apologize! I'M sorry. I didn't explain nearly well enough in my original narrative. I certainly didn't mean to snap at YOU! You've been the single most helpful and encouraging person I've dealt with during this entire process. Your answers to people with CUE questions have pointed me in the right direction time after time and I can't begin to tell you how grateful I am. I've just heard so many times that CUE is "legal" that its making me a little crazy!

If you look at DC 7332 you'll see that rating criteria for 0 - 60 percent are listed in terms of incontinence (which doctors do discuss in records of exams) but the criteria for the 100 percent rating states only "complete loss of sphincter control". Doctors never state this and if you try to look it up in any medical journal you come up with nothing. The only time this term is used is by the VA in relation to this DC. So they've stacked the deck against any veteran being rated appropriately for this disability.

When my original claim was decided I didn't know this and just assumed since the required statement didn't appear in my records I must not be nearly as bad off as some others, even though my doctors had been recommending ostomy. Only after reviewing BVA decisions did I discover that my records showed (sometimes EXACTLY) the same information as other vets who received 100 percent.

While reviewing BVA decisions I found that the VA has interpreted the rating criteria for 100 percent in several different (and in many cases diametrically opposed) ways due to the way it is written and because doctors don't use the language that the VA has perscribed. So, I tried to find out what the rules were for ambiguous rating criteria. So far I haven't found any statute that addresses this issue BUT... In Brown v. Gardner, (1994), the Supreme Court held that if a statute is ambiguous, any interpretive doubt is to be resolved in the veteran's favor. I will be pointing this out in my appeal if my CUE fails.

Let me ask you though... Now that they've received my CUE claim, they've scheduled me for a new examination. This doesn't seem right to me. Under their own rules they can't consider any evidence from a new exam when deciding my case, right? So, why the exam?

Should I refuse to go? or would that mean they'd just drop my rating to "0"? I don't want to give them an excuse to say it's a "Reopened" claim, and that's what it seems like they're setting me up for.

Your thoughts?

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Angela -I feel your CUE claim is excellent-

Why the exam? I sure dont know----maybe to see if the condition is still current and at 100%--

The CUE should resolve the past issue-

The exam could certainly set up a current 100%SC basis-I dont see this as a bad sign-

"Supreme Court held that if a statute is ambiguous, any interpretive doubt is to be resolved in the veteran's favor. I will be pointing this out in my appeal if my CUE fails" GREAT!

And I hope you have saved those BVA decisions or made a list of them?

Even though the VARO doesn't have to adhere to them, they have shown you the logic that I hope VARO will give to your claim.

I sure feel that no vet should miss a C & P exam -the VA would certainly try to drop their comp if they do that----

Angela you have done some great leg work here and you sure dont owe me an apology- sometimes I get a little abrupt myself----

and the legal ramifications of a CUE- it does all sound a little intimidating but your CUE seemed to fully satisfy CUE criteria-and you used their legalise in the best way you could-against their past decision-and

THEY will be intimidated.

CUE claims show the VA we aren't buying anymore-what they might have tried to sell us in a past unappealed decision.

They should be called KIP claims-Knowledge is Power caims because they show a veteran

has studied enough VA law to challenge them.

I have 2 CUES filed. I just love them. Glad to hear from you here Angela. Berta

OH PS "My SO says that the VARO (Houston TX) won't even talk to him at all. "

I just bust out laughing at this-

If he is like two or three SOs I had in the past that might be a very good sign. Otherwise he might screw up the CUE claim.

Edited by Berta
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