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]

I can't get anything going my way.. This is more of a vent than anything.. I started writing my letter, re-writing, editing, and re-writing some more. I've been trying to get in contact with my VSO for a week now. To see what his thoughts on all this may be, and to see if he had any advice to offer.

Well, today I had to go down an pick up a med from my VAMC because I'm not real trustworthy of the usps, and the pharmicist tech putting my meds in the pouch. So, every month, I have to drive down to the VAMC and pick them up. It's atleast an hour each way, and that's if I'm able to miss trafic. While I was down there, I figured I midas well get my wifes dependent id card updated. Her's actually still listed me being active duty. I believe it had just expired also. It's a good thing I decided to do this because deers was about to disenroll my daughter without informing me due to her SS# not being on file. Crazy.

While I was doing all this, my VSO decided to call me back this afternoon. Didn't leave a message, but I seen his number on the caller id. So, now it'll probably be another week until I can speak to him. I'm pretty sure they take fridays "off", and who knows what other excuses he'll have for monday, tuesday, and wednesday.

I've also been thinking here lately, I want to contribute more to this board. The problem is that I don't feel like I have enough knowledge and would probably be doing more harm then good. So, I thought to my self, self.. Maybe you should start blogging and maybe other vets can take away from that, and your situation. So, needless to say, after I get this letter done, I believe I'm going to start blogging on here.

Thanks for listening.. Lol.

Yours truely,

Livingrock aka more confused than ever

[livingrock21]

I just read some very interesting information on vawatchdog.org ..

Now I'm really confused, but may have something going for me. I want to see what you guys think.

I was in the Navy, and on guided missle destroyer. I was awarded the GWOT service medal, but I obviously didn't see any combative time. Supported their missions, but wasn't on the ground.

Here is a link to the document that I just read put out by VBA about GWOT priority processing.

http://www.vawatchdog.org/09/nf09/nffeb09/...%2020-09-07.DOC

He's the part that has me interested.

"Since there may be some delay in receiving data from DoD, all GWOT veterans who have submitted claims may not be timely identified in the DoD data. In order to offset any delay of DoD data, each regional office (RO) will review incoming claims to determine if the DD-214 lists one of the medals described in M21-1MR, Part IV, Subpart ii, 1.D.13.d. The following medals may be awarded for either combat or non-combat service, and their receipt does not confirm a veteran’s participation in combat:

· Global War on Terrorism Expeditionary Medal

· Global War on Terrorism Service Medal

· Afghanistan Campaign Medal, and

· Iraq Campaign Medal.

If a veteran’s DD-214 lists one of these medals and the veteran meets the revised criteria above, process the claim on a priority basis. "

Am I elligible?

[cowgirl]

Ricky, you are good and describe this very well. I agree that its good to act sooner than later. Your experience outweighs mine at this point.

Livingrock, I believe you can succeed in describing the issue at hand, so go ahead on. Keep it simple, direct and clear - if you believe its a CUE after reading all the CUE material available just go for it!

The thing that sticks with me the most after all these years reading, is how 'they' may not ever 'admit' an error, but the va can assign " a rating of XX to a veterans service connected disabling condition of (new&correct name), using diagnositic codes in the 38 CFR Book C Schedule for Rating Disabilities.

Yes, from what I understand, they're supposed to consider all evidence submitted prior to final decisions.

So if you choose specifiy entitlements and/or the rating being sought, keep it direct. All in all I see that a request for increase specifying a service connected medical condition by its proper name should bring the highest rating available. So if you delevop the facts pertinent to your claim maybe you can help the va 'see' they assigned the wrong medical condition and incorrect rating code to your service connected disability according to medical statements and 38 CFR.

On one of my claiims for increase, I simply told them where to look, adding a list of the information in my SMR and VA med files, by date, doctor, condition, etc all on one page.

All the best to ya,

cg'up2009!

Just to answer a previous question you had about the DRO working your claim -

-Upon receipt of your VA Form 9 (once it made it to the appeals team) your claim was docketed.

-The docketing of the claim does not mean it went to BVA immediately. There are several things the RO appeals team must do. They will review the claim ocassionally while in their possession just to insure that no new evidence has been submitted and over looked up to and until they certify the claim to the BVA.

-The appeals team will not certify your claim to the BVA until the BVA notifies the RO that they are ready to receive and review your claim. This could be anywhere from 9-15 months AFTER you file your form 9. The BVA only holds and stores claims folders they are currently working on so it sits at the RO until the BVA asks for it. This is why you can submit new evidence in support of your claim directly to the RO until you have been notified that it has been sent to the BVA. Each time you submit new, not cumulative, evidence a DRO will review your claim and issue a SSOC. This is done so that when the BVA asks for your file, the RO can certify to them that they, the RO, has taken any and all action on the claim (haha).

You will be notified in writing when the RO sends your claim to the BVA - but remember it will be sometime before this happens.

So this is why you are being told the RO still has your claim. That is why I suggested that you submit an arguement for them to CUE themselves with the supporting evidence (eventhough it is in you SMR's and/or you have already submitted. From your description of the cut and paste denials it appears that you may have simply gotten a lazy DRO for a reviewer. When something comes from you containing the word CUE it will more than likely be looked at by another DRO or the appeals team coach (this normally happens alot but is not a guarantee.)

Your VSO understands this transfer and is probably why he is telling you that he wants to keep it at the RO (actually it ain't going nowhere until the BVA asks for it). Just keep in mind that if you want to attempt this effort at getting them to CUE themselves it must be done prior to the claim going to the BVA. If not then your request will fall on deaf ears as the BVA will not entertain anything the AOJ has not had the opportunity to act on.

Edited February 20, 2009 by cowgirl

[livingrock21]

cowgirl,

Here's where I'm at right now. Any advice, help is greatly appreciated. It's def. simple, and I used your format. Also used the regs that were posted on this topic. This maybe way out of wack, and not look anything like these should.

Everyone has been such a big help.

Here the CUE letter is...

Name SS#: xxx-xx-xxxx

The above referenced claimant disagrees with the Dept. of Va Affairs decision dated 22Nov07. The issue in disagreement are as follows:

Clear and Unmistakable Error of claims handling.

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

Name

..........

Attachments/Evidence

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of

disability resulting from all types of diseases and injuries encountered

as a result of or incident to military service. The percentage ratings

represent as far as can practicably be determined the average impairment

in earning capacity resulting from such diseases and injuries and their

residual conditions in civil occupations. Generally, the degrees of

disability specified are considered adequate to compensate for

considerable loss of working time from exacerbations or illnesses

proportionate to the severity of the several grades of disability. For

the application of this schedule, accurate and fully descriptive medical

examinations are required, with emphasis upon the limitation of activity

imposed by the disabling condition. Over a period of many years, a

veteran's disability claim may require re-ratings in accordance with

changes in laws, medical knowledge and his or her physical or mental

condition. It is thus essential, both in the examination and in the

evaluation of disability, that each disability be viewed in relation to

its history.

[41 FR 11292, Mar. 18, 1976]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A--General Policy in Rating

Sec. 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same

disability in the same language. Features of the disability which must

have persisted unchanged may be overlooked or

[[Page 336]]

a change for the better or worse may not be accurately appreciated or

described. It is the responsibility of the rating specialist to

interpret reports of examination in the light of the whole recorded

history, reconciling the various reports into a consistent picture so

that the current rating may accurately reflect the elements of

disability present. Each disability must be considered from the point of

view of the veteran working or seeking work. If a diagnosis is not

supported by the findings on the examination report or if the report

does not contain sufficient detail, it is incumbent upon the rating

board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

I was rated improperly due to spoliation of evidence that was provided. I was given an incorrect C&P exam for the Erythromelalgia condition. My rating was based solely off this, and my service medical record could not have been used for rating purposes. I was given a partial grant on my last appeal and it was found that I was listed for the incorrect condition. The C&P exam I was given was for the incorrect condition also, so it cannot be used to rate my condition. I’ve sent a memo from my active duty primary care Dr. on a few occasions and it’s obviously been ignored. This memo is also the first page of my service medical record. It states my condition, amount of attacks per week (that average to 7, at least once a day), duration of attacks, and that it does not respond to treatment. I’ve also recently submitted evidence from SSA stating that I’m receiving SSDI benefits due to this condition. That covers the effect of daily activities. I can’t do the most daily activity which is work, let alone enjoy all of the other simple things in life. I believe that I should be rated at 100% for this condition as per the rating criteria in 38 CFR Part IV under diagnostic code 7119.

---EDIT---

Keep in mind, this is my first rodeo, lol.

Thanks again everyone!

----Another EDIT---

I need to "ask" them to CUE themselves in the second statement.?? So lost.

Edited February 20, 2009 by livingrock21

[livingrock21]

Tried calling my VSO twice this mourning, and no answer. This is during their working hours. I finally got his secratary, and sure enough, he's out again today. Looks like it wont be until monday that I might be able to send this in. I might just go over his head, and send this in anyway.

[livingrock21]

Is my CUE letter that bad??