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]

Cowgirl,

As much as I don't really want to keep my VSO in the loop, I think your right. It just seems like all my VSO has done for me is actually harm my claim. It's sad, but people around here are so much more educated(as far as VA regs go) than him, or any of the other VSO's in that office. I've often thought about checking out the other VSO's.

Timetowin,

I def. see what your saying, and that would be definite grounds for a CUE. Even if they said they included the material evidence in their review it's obvious they didn't, or the outcome would have been drastically different.

I may scan the memorandum from my active duty PCP so you guys can see what I'm talking about. The piece of information that they seem to keep "forgetting" about. The first page in my SMR. It lists everything needed for the rating criteria, the only thing that's not listed is covered by SSDI.

I may be wrong though, if I am, please let me know.

Thanks again to all!

[Berta]

"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."

If this was a final unappealed decision, with an error in the rating and wrong diagnostic code- to the detriment of the veteran- financially -due to loss of comp- that would be basis for vet filing a CUE claim AGAinst VA-

But this looks like a situation where the VA can ask the VA to CUE itself. a whole different type of CUE.

[livingrock21]

I've been sitting here pretty much this whole evening trying to write a letter asking the VA to que themselves stating the regs that Berta posted here. Hopefully I'll be able to finish it up by tomorrow, and I'll post it on here for review, lol. Maybe you guys can give me some tips. I've also been trying to stick to the format that Carlie posted.

[livingrock21]

You know, I was just sitting here thinking. I think a solid CUE on my part would be the fact that they gave me a C&P exam for the wrong condition. The C&P exam that I recieved was for parlysis of the median nerve, and not for Erythromelalgia which are two different conditions. I just realized this by reading my statement of the CASE from the original decision. I looked up the Paralysis of the Median nerve code in the VASRD and in their statement it's listed exactly how it is for that condition. I should have gotten a proper C&P exam. Thing is, if I use this as a CUE, I'm looking at another C&P exam. After a new C&P exam, the decision with take atleast another 6 months. It doesn't get any more solid than that. I just dont want this CUE getting thrown out.

AAGGHHH! I think this is the way I'm going to go. Now, I need to find regulation pertaining to this. It seems to me their basing everything off the C&P exam in my case. Their obviously over looking the first page of my SMR that is a memo from my active duty PCP stating condition and relevant facts.

What's everyone else think about this? I don't think it could get any more solid. I'd atleast like to have that medical evidence thrown out since it's not relevant. So they can't use it. I was reading on the site Cowgirl listed, and it said the VA can use any evidence in your claim, even if it's obvious mis-information.

Thanks for the help guys/gals!

[cowgirl]

Livingrock, step back and think; if like Berta posted

"But this looks like a situation where the VA can ask the VA to CUE itself. a whole different type of CUE."

Its possible that you could draft out an clear explanation of how the denial was wrong, sticking to the facts, medical reports, c&p, va medical files, va denail and then run by hadit and/or your vso. If you can help the va can see it as well, they just might cue theirself, so that might even be faster; who knows?

I sort of see your explanation as a list of attachments that SUPPORT the facts that the va had on hand and overlooked in the processing and approval of your claim to correctly service connect your disability.

Be careful, I just read you said you are on 'final appeal'. Not sure what that means, just regroup and surely dont burn bridges.

Best to ya, jmho and hope anything I said makes a bit of sense, if not, sorry, I'm still a'learnin' myself.

Cg'up2009!

[livingrock21]

Cowgirl,

What I meant by final appeal, you can only appeal the same claim three times, as far as I know. That's the way they made it sound in this last statement of the case. Also, as far as I know this appeal has to go before the BVA, if I opted a DRO hearing, or Court hearing.

Your great cowgirl, you sure could have fooled me by the "still learning" comment... You def. have yourself together when it comes to the VA!