diabetes Is This A Cue?

[Shark]

I received a decision in July of 2008 granting me 50% PTSD, I already had 20% for Agent Orange Diabetes 2 and 10% for each limb for peripheral neuropathy for a new total of 80%. I applied for TDIU and was denied in October of 2008. Their reasoning was that I was not found unable to secure employment since I have an MBA and am in a Ph.D. program. This is despite letters from my VA Psychologist and Psychiatrist stating that I am unable to work. I have income tax records from 2006 on showing that I have only received SSDI and VA benefits and have not been employed. I filed a NOD in December of 2008 and have secured an attorney, but he will not do anything until he receives my C file, even though I have a copy that I received last month! It has been 3 months since he sent in a request.

So, the PTSD is working overtime and I am getting more and more upset and was thinking about filing a CUE due to " RO had failed to apply the “clear and convincing evidence” standard of proof mandated by 38 C.F.R. § 3.343©(1). " that I could work.

Does anyone have any thoughts on this approach?

Thanks!

[carlie]

I applied for TDIU and was denied in October of 2008.

So, the PTSD is working overtime and I am getting more and more upset and was thinking about filing a CUE due to " RO had failed to apply the "clear and convincing evidence" standard of proof mandated by 38 C.F.R. § 3.343©(1). " that I could work.

Does anyone have any thoughts on this approach?

Shark,

Cue is filed on a final, unappealed decision.

Your TDIU is not a final, unappealed decision at this time.

Did you file a NOD on the Oct. 2008 decision that denied your claim for IU --

you have one year from the date of the decision to file your Notice of Disagreement.

carlie

[LarryJ]

Hi, dude.

What's to stop you from simply giving your c-file to your legal beagle?

As far as your possible "cue" is concerned, yes, it does sound like you may very well have a good point in the "clear and convincing evidence indicating that you could work" that they are SUPPOSED to use to make their decision vis a vis your being TDIU.

Heck, run it up the flag pole. May be the only way around the fact that they are bringing into play the fact that, just because you are taking college courses that that makes you employable. Hell, I have a BSEE and a MSME and I couldn't work, otherwise, I assure you, as I assured the VA and the SSA, that I'd MUCH RATHER be making the $250K a year that I was able to pay myself, AFTER expenses, than I had to be drawing SSDI and VA comp!

It should (your education) have nothing to do with whether you CAN carry out a reasonable amount of employment. If you are unemployable, regardless of whether you are a craftsman or a surgeon, you are still unemployable.

Go for it.

[LarryJ]

Carlie is correct. I didn't think about that. So, you may have to wait a while and hopefully, they'll see the light, without you having to file the CUE.

[broncovet]

Shark

I hear a lot about CUE, it does not apply to you, because: If you appeal during the one year period, it is unnecessary for you to prove the stricter, "CUE" standard. YOu only need to try to prove CUE if you failed to appeal during the one year period. Otherwise, you have a much lower standard, that is, a regular appeal without CUE.

Dont make it harder on yourself to prove CUE, as long as you appeal within the year, it isnt necessary.

[Shark]

Shark

I hear a lot about CUE, it does not apply to you, because: If you appeal during the one year period, it is unnecessary for you to prove the stricter, "CUE" standard. YOu only need to try to prove CUE if you failed to appeal during the one year period. Otherwise, you have a much lower standard, that is, a regular appeal without CUE.

Dont make it harder on yourself to prove CUE, as long as you appeal within the year, it isnt necessary.

Yeah, I already filed a NOD on the TDIU decision and my DAV rep at the time convinced me to go traditional rather than DRO. I have since fired him and gone with an attorney. I offered to provide the C file to my attorney, but he wants to get his copy from the VA...no clue why! I am just trying to find some way to speed the process up, but that may just be a futile effort! Hard to just sit by and wait when the PTSD kicks in...as many of you know!

Thanks for the info!

Ric

[Philip Rogers]

Shark, I would think you could rescind your traditional appeal request and request a DRO hearing instead, now. Your traditional appeal process will probably take about 2 yrs before the BVA even looks at it and stands a good chance of being remanded. I project about 4 yrs until a decision, that way. A DRO "could" be faster and more favorable. CUE is out of the question, at this time.

Personally, I'd appeal the 7/08 decision awarding 50% for PTSD and the 10/08 TDIU decision. Additionally, I'd use "grave procedural error" on the clear and convincing evidence.

As for the atty wanting the c-file directly from the VA, he just wants to be sure he has everything the VA has. Some clients may withhold parts of the file. Additionally, he needs to see that everything done in the file was done in proper chronological order. At this point I don't see an atty being able to expedite your decision in any way. jmo

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