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Pretty Sure I Can Ask The Va To Cue Themselves?

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livingrock21

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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 by livingrock21
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Seems to me that if they ignore evidence submitted it would be a CUE but the truth is many Vets who think that they have a CUE rarely get it. The VA is a bunch of weasels.

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If you ask them to CUE themselves-refer to the CUE regs and how they disregarded 38 CFR below and M21-1MR

- but this will not stop any time frames you were given for appeal or response-

I used 38 USC for my old 1996 request that they should CUE themselves and I used the DRO's job description in M21-1 to get a prior 2005 decision cued by the VA.

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

______________________________________________________________________________

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person.

AND if the VCAA letter you got specifically asked for information or evidence that you-in fact- supplied- make sure you raise that point in your request for them to CUE themselves.

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You guys are all great..

Berta,

I want to give an extra thanks to you. You are such a wonderful person. I see all the help that you've given other vets, and my self.

Everyone on here is awesome!

I think I have what I need, now I just need to type it up, and submit it. To the VA, I don't think I'm going to give it to my VSO. The VA's still waiting on evidence that he was supposed to turn in three weeks ago, and he's located right at the VARO.

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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!

Question, when they granted the correct dx code did they provide the reasons for the assigned percentage under that code? The SOC should contain the reasoning for the percentage applied with referance to the rating criteria for the correct code. If they did not give the reason for the percentage assigned or if they did and it was the same as the reasons under the wrong code, then it could be CUE. But if they gave the reason w/referance to the rating criteria for the correct dx code it would not be CUE.

What I'm getting at is, wether or not this is CUE would be determined and proven in your award letter/SOC. At least, that is my thoughts on it.

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