Pretty Sure I Can Ask The Va To Cue Themselves?

[livingrock21]

I posted here about a week and a half ago. Here's my prior post : http://www.hadit.com/forums/index.php?show...hl=livingrock21 .

I'll give a quick run down on my situation again.

I filed my claim in June of 07 through the BDD program. Was supposed to get my findings 90 days after that, but didn't get them until the end of Nov 07. I imediately noticed that they rated one of my conditions under the wrong VASRD code. They had me rated for Paralysis of the median nerve, and I'm supposed to be rated under Erythromelalgia (7119). Two comepletely different things, that aren't even medically related. I appealed a few days after getting my original findings. The statement of the case that I got from that was denied. Appealed again, this time they partially granted it. They agreed they messed up on the DX, but didn't change the percentage like they should have. I'm on my final appeal now. I know it could take years before I get results now. There are a few reasons for CUE. The main reason obviously being the fact that they rated me improperly to begin with, and both conditions have different rating criteria so how could the percentage stay the same. Also, every time I appealed, I filed for reconsideration. I sent in formal letters. No where in the letters did it say I wanted to file a Notice of Disagreement. Clearly stated that I'd like them to reconsider my claim.

I was under the assumption that an appeal had to be closed out before one could ask for a CUE. I read a case earlier that proved me wrong.

My questions are:

- Does everyone think I have a pretty good basis for a CUE?

- What's the average wait time for a CUE if I can keep my claim at the RO?

- Any other ideas?

Another quick question. What's the criteria for a hardship(getting a hardship to move your claim faster)?

People that read my other thread,

I thought my VSO was actually doing something to help me. He said yeah, send in your evidence(SSDI qualification letter stating conditions). Keep in mind there's alread a FORM 9 NOD in for me right now, he decided to open a new claim for increase. Yeah, that's really helping things. HAHAHA. All it's doing is slowing things down. Thinking about switching VSO's from the VFW to the DAV. Any opinions on that?

Thanks for the help in advance everyone. You guys give such great information!

Edited February 28, 2009 by livingrock21

[livingrock21]

Scooby,

I've thought about getting a lawyer. I wouldn't mind paying 20% of retro, but...

I feel like a lawyer would have conflicting interests. I mean, they obviously want to win your case, but on the other hand it doesn't matter how long it takes, as a matter of a fact the longer the better for them. When you enter a contract with them, can you stipulate that if your claim isn't finalized within 6 months, that you can fire them?

[hollywoodnc]

A cue is a collatarel attack on a FINAL decision. A claim must be final, 1 year after a decision has been made. All other instances it is considered a reopened claim.

Now the VA can call a cue on itself at any time.

That is your best option. Meet with them with regs in hand to show them what the error was.

J

It is a final decision if it was rated upon. Even a mere mention in a BVA decision.

However...

In MY case, all the decisions EVER rendered failed to address additional disabilities mentioned by physicians in the past. Logically speaking, they are "Fair Game", which entitles me to address them this late in the game. In this case 33+ years.

In short, if additional disabilities are in medical records, and not addressed in prior decisions, and they do contribute and are related to S/C, and they are coded, then it is logical to presume that they are subject to an Administrative Review, and are payable retroactive from the effective date?

Clearly this is a Clear and Unmistakable Error claim and it cannot be disputed, nor can the DVA 'Pick and Choose' what they can award if it is documented on record by their own doctors.

This is what I have filed in my claim, and by law, this is what they have to pay.

What a NICE check that will be...from 1976 to 2009.

Hmmmm...I can just see it now. Retirement on a Caribbean beach! B) <_<

[luvHIM]

A cue is a collatarel attack on a FINAL decision. A claim must be final, 1 year after a decision has been made. All other instances it is considered a reopened claim.

Now the VA can call a cue on itself at any time.

That is your best option. Meet with them with regs in hand to show them what the error was.

J

That is precisely what I did and they (RO) called a CUE on themselves and I have won this portion of my claim...received that decision yesterday.

So, I can absolutely agree. They took it all the way back to May 2003, which is when I said the CUE began and met them with the regs.

I can't remember the exact time frame but I know it was at least a year ago. Berta talked about it being a CUE when the regulations change during the pendancy of a claim and the VARO doesn't apply that rule in their decision. Anyway, I just took all the information from here, as it pertained to my claim/appeal, and went for what I knew.

My recent win was for the claim that was pending a BVA hearing from way back in November 2005. VARO adjudicated on this portion before dealing with the NOD regarding my claim for the secondary conditions. So, my win is (PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL)

But bottom line is that I agree with what J has stated. I can testify to it now because it JUST happened for me. Best regards!!!

Edited February 14, 2009 by luvHIM

[livingrock21]

Question to all,

I'm positive I'm going to ask the VA to CUE themselves. What I've been thinking about though is what I want them to CUE themselves on. In my appeal, they didn't use the VASRD correctly, and it's a black and white situation. The first page of my SMR states my condition, how often I have flares, duration of them, and the fact that my condition does not respond to treatment. That one single piece of paper states everything that is needed to make a decision about my claim. Apparently they decided not to use that information. The only other criteria in the VASRD is wether it affects daily activity, and the evidence that I'm talking about does not discuss this. So, under the criteria I have listed, I should be rated at either 60% or 100% depending on the effect this condition has on daily activity. I recently(within the last two months) submitted my SSDI information(even though there supposed to share this information automatically, as soon as one or the other makes a decision). So, I should be looking at 100% for this condition.

My question is, what regulation states that they must apply the VASRD correctly. I've seen it before, but I'm not sure what or where. I could look also, but I'm not sure where the regulations are located pertaining a CUE. Thanks for the information. I really believe this would be my best shot for a CUE. There are other things I could ask them to CUE them selves over, but I think this would get the best results.

Thanks in advance for the information. IT's greatly appreciated.

[cowgirl]

Just looking at keeping things simple and in perspective. If you have a denial in now, you could wait until you see the results. Or provide additional information and clarity to assist them in making the correct decision on your behalf. Then take a breath before acting.

For example, when I did a NOD it looked something like this:

The above referenced claimant disagrees with the Dept. of Va Affairs decision dated xxxxx. The issue(s) in disagreement are as follows"

Clear simple target statement

(example: Denial of individual unemployability.) or (clear and unmistakable error for xxxxxx).

Once all the necessary adjudicative actions have been completed please advise me accordingly. Thank you for your consideration.

name

..........

Attachments:

1. like Jbasser said (*this is where you present your evidence and present your current disability

2. and both sets of regs. One is under neurological and the other one is under cardiovascular.)

If you have more than one clear issue, something could happen like 'luvhim" VARO adjudicated on this portion before dealing with the NOD regarding my claim for the secondary conditions..."

Myself, I believe in keeping it simple, directed to the request best as possible, but have been cautious about backing myself into a corner with too much wordy 'direction' in my request. Only the facts, diagnostic codes, medical statements and regulation excerpts.

I do not believe the amount of time increased at all in processing my simplistic claims versus one that 'seems' to have all the answers. A well laid claim, with facts, regulation numbers, dates and more than one medical report for backing up a request. Thats what I continue to learn from others here at Hadit.

Let me know what you think, I keep plugging away trying to get it there too,

Best to ya,

Cg'up2009!

P.s. Maybe someone else here can pipe in and clarify if you put in a request, should it be for 'increase' or 'additional information' to a current NOD in progress, or what>?

Edited February 16, 2009 by cowgirl

[livingrock21]

Cowgirl,

I believe my VSO already did that. He put in a claim for increase. I'm thinking about withdrawling this though. Everything I've seen on here seems to point to the fact that if you try to open another claim while theres an appeal, it slows things down.

I really feel a CUE is my best option right now.

If I'm wrong, please correct me. I'm def. the new guy here, and need your guys help. I don't know what I would have done with out you guys.

--------EDIT---------

You know, I just re-read your post, maybe I looked at it wrong. Were you trying to help me with a CUE statement?? Sorry for misunderstanding you.

-------EDIT AGAIN, LOL--------

The more I look at it, I think you were trying to help me with a CUE.. I'm going to look at it more, I'm sure I'll have more questions. I really think maybe I'm loosing it.

Edited February 16, 2009 by livingrock21