Continued Appeals Process

[Ricky]

I am in the process of tearing apart the SOC that I received on my case and submitting my VA 9. However, it is a personal goal in my life to come face to face with the idiots they call DRO's in Montgomery VARO. Therefore, I am willing to add the additional time to my appeal to make this happen but I do have a couple of questions: During the DRO hearing is it possible to receive an on the spot approval of the disabilities you are appealing? Is it possible that after the hearing there will be maybe partial grants of appealed items? If no changes are made after the DRO hearing will I receive a SSOC?

Ricky

[Ricky]

Can I claim CUE in the VA9 that I am now submitting? If so what effect will it have on my appeal? ie...will it gurantee a remand or could the board say yep cue happened and we are going to fix it. The below is my thinking.

In my my Mar 05 claim for 100 percent for six months for the CVA 4.124a (8008) I asked that two new claims be opened. 1-cva, 2-Dejerine-Roussy syndrome (residuals from the stroke).

I asked for both at the same time cause I knew that at the end of six month period I would have to submitt a claim for the residuals. In the rating decision they rated it as "residuals of CVA with Dejerine-Roussy syndrome and gave me a 10 percent rating. They said the 100 percent was denied due to a lack of a recent and active disease.

Now 8008 says they have to rate the cva for 100 percent for six months. Then rate the residuals at least 10 percent. The way I see it they did not even discuss my claim for the cva as evidenced by their rating decision letter which said "residuals of cva with dejerine-roussy syndrome. Therefore, they failed to open and rate my claim for the cva and improper application of 4.124A. is this cue?

Although they did attempt to rate the residuals they applied the generic 10 percent rating. The dejerine-roussy syndrome was the residuals which is why I do not understand both the rater and the DRO when they state "residuals of cva with dejerine-roussy syndrome. In my request for the dejerine-roussy syndrome and the medical treatment records, dr. statements and the CP exam, all provided that the syndrome affected the left side of the face, the left arm and hand and the left leg and foot. No where in the rating decision or de novo review does it say they gave me or denied me a rating for the face, arm/hand or leg/foot. 38 CFR provides that all disabilities resulting from a disease or injury such as cva are to be rated seperatly. Therefore, I should have received a rating or denial for my face, hand and foot. who knows maybe they gave me 3.3333 percent for each one hahahha. They did not do this. Is this cue?

I feel that both are cue's. They totaly failed to properly apply 4.124a and rate/deny the cva and did not even discuss my claim for the cva in the rating decision. Although they did stated the 100 percent was not warranted due to the absense of a recent and active disease (which is not a requirement of 8008) that was discussed under the rating for residuals of CVA with dejerine roussy syndrome. although they did provide a 10 percent rating for residuals there was no discussion as to whether it was for my face, hand or foot.

Thanks Ricky

I feel that it is.

[Guest Berta]

Ricky- if you have "loss of use of" the affected hand and /or foot, that could be ratable under 38 CFR 1114 k--

there are many residuals of a stroke-

and it appears they did overlook them in your decision.

If a veteran has functional loss of use of hand or foot- due to SC -the VA should rate this as Special Monthly Compensation.

Loss of use of hand is defined as inability to grasp coins, use tools, etc. Loss of use of foot can be that a stroke has caused severe balance problems and numbness due to neuropathy in foot causes additional disability.

There is a lot of CUE info in my blog at hadit.

A CUE can only be called on a past final VA decision-when a vet is still in the appeals process- this is the time to raise all issues of legal errors in the adjudication of their claim.

A final decision is one that was never NOdded in the year after the decision-or even if Nodded and then denied and never appealled -this is a final VA decision.Therefore -because it is a final VA decision ,it can only be changed by findings of CUE-clear and umistakable error-in the misapplication of legal regs and criteria in 38 CFR.

Sometimes the VA itself can CUE itself-but that is extremely rare.

It happened to me two years ago-

I had CUED something and was denied and let it go-like a dope----never appealed it-

Regional Counsel found the CUE when I reopened my claim and the VA rectified it.

At this point I believe your entire claim is still in the appeals stage and these issues can be raised on appeal-

I believe you would have the right- if you have sent them the I-9 already, to add an addendem to it if you feel your I-9 did not cover all issues-

They need to know exactly what residuals you have-

I am curious as to what Diagostic code they gave you for 10% "residuals".

In my husband's case they rated him at 100% for "residuals" under upper and lower extremities and brain

deficits but the rating codes were all wrong.10% for residuals seems ridiculous when one has had brain damage -which is what a stroke really is.

Edited March 2, 2006 by Berta