Cue And Nod

[DC1775]

Hello Friends,

I have a question about CUE and filing a NOD. I'll try to explain and ask it as clear and simple as possible... but you know the way the VA is...nothing seems simple and clear!

I filed a claim for a service connected disability in 2002. It was denied and I did not appeal. I filed a new claim for the same disability. It was denied a few times...but finally granted a couple months ago.

I was granted 30% but I think that my claim warrants 50%, so I plan on filing a NOD to the 2009 decision for an increase.

Since my claim was finally granted, I'd like to reopen my claim from 2002 -- based on CUE.

Can I file a CUE and NOD in the same claim or do I need to file a an informal NOD and a completely different claim for CUE?

I'd appreciate any advice that anyone could offer!

Semper Fi

[Philip Rogers]

Yes, you can.

pr

quote name='DC1775' date='Apr 5 2009, 03:11 PM' post='139082']

Hello Friends,

I have a question about CUE and filing a NOD. I'll try to explain and ask it as clear and simple as possible... but you know the way the VA is...nothing seems simple and clear!

I filed a claim for a service connected disability in 2002. It was denied and I did not appeal. I filed a new claim for the same disability. It was denied a few times...but finally granted a couple months ago.

I was granted 30% but I think that my claim warrants 50%, so I plan on filing a NOD to the 2009 decision for an increase.

Since my claim was finally granted, I'd like to reopen my claim from 2002 -- based on CUE.

Can I file a CUE and NOD in the same claim or do I need to file a an informal NOD and a completely different claim for CUE?

I'd appreciate any advice that anyone could offer!

Semper Fi B)

[carlie]

Hello Friends,

I have a question about CUE and filing a NOD. I'll try to explain and ask it as clear and simple as possible... but you know the way the VA is...nothing seems simple and clear!

I filed a claim for a service connected disability in 2002. It was denied and I did not appeal.

The 2002 Rating Decision that denied your claim.

What did the 2002 Rating Decision state in the Reasons and Bases Section in order to deny your claim ?

I filed a new claim for the same disability. It was denied a few times...

What did each of the Rating Decisions state in the Reasons and Bases Section in order to deny your claim ?

but finally granted a couple months ago.

The recent Rating Decision that provide a grant, stated what in the Reasons and Bases Section?

Was there different Evidence listed on the Rating Decision that granted your claim as compared to the Evidence on the Rating Decisions that denied your claim ?

I was granted 30% but I think that my claim warrants 50%, so I plan on filing a NOD to the 2009 decision for an increase.

What injury, illness or disease were you granted the 30% for ?

By chance do you know what Diagnostic Code VA granted the 30 % for ?

Have you compared your medical evidence of your disability to the

requirements at the 50 % level, found at 38 CFR - Part 4 - Schedule for Rating Disabilities ?

http://ecfr.gpoaccess.gov/cgi/t/text/text-...fr4_main_02.tpl

Since my claim was finally granted, I'd like to reopen my claim from 2002 -- based on CUE.

You feel the 2002 denial for what condition______ was based on Clear and Unmistakable Error, due to_________________.

But not for this error it would have manifestly changed the outcome

by, ______________________(what ever you should have been awarded and lost out on.

Can I file a CUE and NOD in the same claim or do I need to file a an informal NOD and a completely different claim for CUE?

Sure, a claimant can do whatever they want. Will it have a positive outcome ?

I would need to know these answers before I would speculate on an answer to your last

question.

jmho,

carlie

[DC1775]

What did the 2002 Rating Decision state in the Reasons and Bases Section in order to deny your claim ?

It said that my service medical records were 'completely silent for your being treated for any bipolar disorder in service" it also says: 'it was noted that you were treated for depression at VAMC NJ and VAMC DC and the QTC indicated that you had bipolar disorder. However, there is no evidence that you had this claimed dis. while you were on active duty'

---the qtc exam that the va asked for..the doc said that: 'the vet. meets criteria for a a diagnosis of i bipolar dis., which is service connected, since it's onset, initial diagnosis and tratement occured while the vet was in the military.'

What did each of the Rating Decisions state in the Reasons and Bases Section in order to deny your claim ?

1-they admitted that i had bipolar disorder, but that it wasn't service connected cause my files didn't have any mental health records.

----i reviewd my file more thouroughly and found an appt. list with all my mental health sessions while on active duty. due to the time that had passed, navy and army regs. require the actual records to be destroyed (i have the reg. numbers that i included in my nod) i was able to track down a doc from the navy that saw me and referred me to the mental health clinic and even track down a doc that i saw for mental health while i was at ft. meade. both of these doctors wrote letters for me.

2-they admitted that i had bipolar at age 19--but said it was prior to my mil. service. however, i joined when i was 17...i filed a NOD and pointed out how they messed up the dates...etc...they finally granted a sc.

The recent Rating Decision that provide a grant, stated what in the Reasons and Bases Section?

it's about 3 pages...i have it scanned in but can't paste it here for some reason., but they cite evidence that was in my claim from 2002 and admit the age mistake and say that..resolving all reasonable doubt in my favor...condition began while on active duty

Was there different Evidence listed on the Rating Decision that granted your claim as compared to the Evidence on the Rating Decisions that denied your claim ?

yes---there were a few items that were on my original claim.

I was granted 30% but I think that my claim warrants 50%, so I plan on filing a NOD to the 2009 decision for an increase.

What injury, illness or disease were you granted the 30% for ?

bipolar disorder

By chance do you know what Diagnostic Code VA granted the 30 % for ?

9440 gen. rating for mental dis.

Have you compared your medical evidence of your disability to the

requirements at the 50 % level, found at 38 CFR - Part 4 - Schedule for Rating Disabilities ?

yes...and i'm getting evidence together to submit to include stuff that was in my records that would warrant a higher rating, along with a letter from my doc outside the va (who has been involved since 2004 and submitted letters before) to submit a letter using language for a higher percentage. and a letter from a friend of mine doing the same thing

http://ecfr.gpoaccess.gov/cgi/t/text/text-...fr4_main_02.tpl

Since my claim was finally granted, I'd like to reopen my claim from 2002 -- based on CUE.

You feel the 2002 denial for what condition__bipolar____ was based on Clear and Unmistakable

here is my draft for the CUE.

In its decision, the VA declared, “Your claim for service connection for bipolar disorder (also claimed manic depression) is denied, because your service medical records were completely silent for your being treated for any bipolar disorder in service. It is noted that you were treated for depression at VAMC in New Jersey and VAMC in DC and the QTC examination indicated you had bipolar disorder. However, there is no evidence that you had this claimed disability while you were on active duty.”

This statement contains clear and unmistakable errors of material fact:

(1) There is evidence of bipolar disorder in service. As a result of the QTC examination ordered by the VA as part of the claim consideration, Dr. xxxx Walker wrote on March, 27, 2003: “. . . the veteran meets criteria for a diagnosis of bipolar disorder, which is service connected, since it had its onset, initial diagnosis and treatment while the veteran was in the military. I feel that the veteran’s brother’s death [while the veteran was on active duty] was a precipitant or catalyst to the onset of bipolar disorder . . . .” (emphasis added)

Thus, the plain words of the VA’s own chosen examiner demonstrate the clear and unmistakable error in declaring “no evidence” of bipolar disorder while on active duty. The results of the QTC — specifically ordered by the VA as part of its consideration of the claim — were overlooked or ignored.

(2) My service medical records were not “completely silent” on bipolar disorder while on active duty. When this claim was decided, my file contained substantial and abundant evidence of, and even a specific list of, numerous appointments with medical personnel for psychological problems suffered while I was on active duty. But the results of those appointments, which included discussion of bipolar problems, were not in the file — although they should have been — and were not considered in the decision.

Thus, consistent with the decision handed down by the court in Russell v. Principi, 3 Vet. App. 310, 314 (1992), where court held that VA’s failure to consider relevant evidence which was in the record before it at the time of the prior de­cision may constitute clear and unmistakable error, if the failure affected the outcome of the claim, Mr. Miller believes the fact in his own case warrant a similar adjudication.

This contention is further strengthened by the ruling in Bell v. Derwinski,:

The file’s documentation of those appointments constitutes “constructive notice,” in accordance with the decision in Bell v. Derwinski (2 Vet App. 611, 1992), that the results existed in VA records, and that those results should have been in the file and should have been considered in reaching the decision on my claim. Constructive notice placed an affirmative responsibility on the VA to obtain those records and consider them in reaching its decision. It is, therefore, a clear and unmistakable error not to have done so.

But not for this error it would have manifestly changed the outcome by, granting a claim for service connected disability for bipolar disorder. For these reasons, I ask reconsideration of the 2003 denial, and benefits retroactive to the date that claim was filed.

Can I file a CUE and NOD in the same claim or do I need to file a an informal NOD and a completely different claim for CUE?

Sure, a claimant can do whatever they want. Will it have a positive outcome ?

I would need to know these answers before I would speculate on an answer to your last

question.

jmho,

carlie

[jbasser]

You can mention all the CAVC cases you want to, but in your case you must show them not only why, but how the cue was committed based on legal criteria. This criteria is to take the regs at the time of the decision and use them in a manner that would show how your claim's outcome would differ from the original decision. Yours is actually an easy one. You had Bi polar listed in the service record at 19 and you filed a claim for it. It was denied based on a ficticious statement.

This is not a point of how evidence was reviewed, it is a fact that had the evidence been reviewed, your outcome would have been different.

The same thing happened to me on My HTN claim. I had it in service, ( !7 of 19 BP readings were compensable) but to the RO there were no complaints, treatment and ect. I was awarded SC for it at a later date.

Go after your retro and eed.

Good Luck,

Keep us posted.

J

[DC1775]

Thank you! You said that a lot easier than I've been trying to explain it to myself! I will def. keep everyone posted. This forum is great!

You can mention all the CAVC cases you want to, but in your case you must show them not only why, but how the cue was committed based on legal criteria. This criteria is to take the regs at the time of the decision and use them in a manner that would show how your claim's outcome would differ from the original decision. Yours is actually an easy one. You had Bi polar listed in the service record at 19 and you filed a claim for it. It was denied based on a ficticious statement.

This is not a point of how evidence was reviewed, it is a fact that had the evidence been reviewed, your outcome would have been different.

The same thing happened to me on My HTN claim. I had it in service, ( !7 of 19 BP readings were compensable) but to the RO there were no complaints, treatment and ect. I was awarded SC for it at a later date.

Go after your retro and eed.

Good Luck,

Keep us posted.

J

[DC1775]

I re-read your posting, and have a couple of questions if you don't mind.

It wasn't my service records that said I had bipolar at 19..it was the mental health records and letters from doctors and stated on my C&P exams and finally in my 2009 review where the VA recognized that i had bipolar at age 19.

You said to take regs at the time of my decision and how the outcome would be different. Do you think I did that with my claim for CUE that I posted on here?

I am filing for an increase on my recent rating through an informal NOD and requesting a review from the DRO. As far as the CUE goes, do I need to file a separate claim all together or can I include it with my NOD?

Sorry for all the questions...I started reading all of this again....and making think more and more! I do appreciate your advice though!

You can mention all the CAVC cases you want to, but in your case you must show them not only why, but how the cue was committed based on legal criteria. This criteria is to take the regs at the time of the decision and use them in a manner that would show how your claim's outcome would differ from the original decision. Yours is actually an easy one. You had Bi polar listed in the service record at 19 and you filed a claim for it. It was denied based on a ficticious statement.

This is not a point of how evidence was reviewed, it is a fact that had the evidence been reviewed, your outcome would have been different.

The same thing happened to me on My HTN claim. I had it in service, ( !7 of 19 BP readings were compensable) but to the RO there were no complaints, treatment and ect. I was awarded SC for it at a later date.

Go after your retro and eed.

Good Luck,

Keep us posted.

J