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

pr

[deltaj]

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!

If you are receiving SSD due to a service-connected disability, go to the Social Security office and make a written request that copies of your Social Security medical records be sent to V.A. in support of your pending claim for total disability and individual unemployability. After these records are received V.A. will have to consider this new and material evidence under 38 CFR 3.156 and 38 CFR 3.400 (q).

[jbasser]

Cue is a collattarel attack on a (FINAL) decision which means 1 year past the decision date. Failure to apply the appropriate regs can be considered cue but you have to show them why and then reasonable minds must differ from the original decision.

It is tough to prove a CUE but it can and has been done.

Show them the regs and how they did not follow them.

Cue cannot be filed on harmless errors or how evidence is weighed.

Good Luck.

Edited June 17, 2009 by jbasser (see edit history)

[Pete53]

I guess that I was under the mistaken impression that CUE could be requested when the Veteran discovered the error or CUE and requested the VA to review for it.

In most legal situation a correction of a procedural error does not have a time limit.

I am probably full of beans but that is what I thought

[Berta]

Do you receive SSA disability benefits solely for the service connected conditions?

If so-Does VA know this and did they consider your SSDI records in their decision?

Did they fully consider the letters you have as evidence stating you are unemployable?

Did the 2 VA doctors clearly state that you cannot work due to your service connected disabilities?

I see no basis for CUE claim here at all.

I suggest that you go over the SOC and see if they have missed any critical evidence in their decision.

[Berta]

forgot to add- when a disabled vet continues their education it can become a 2 edged sword-

the VA tried to drop my husband's PTSD rating when he went back to college under Voc Rehab-after ONE semester they thought he had become a rocket scientist.

however we overcame that idea by attaching to the NOD copies of his grades, and of his tutoring sessions (he had difficulties in school due to misdiagnosed visual condition) and also we attached copies of his accomodations requests for a note taker and special exam accomodation- he could not handle the ticking time clock they use for exams due to his PTSD)

also I certainly wrote a scathing letter to them regarding something else they tried to use against him ( 3 months of VA part time employment) and they dropped the whole idea of lowering his comp.

I commend you for being in a Phd program but VA certainly views this as attaining a high level of education for some purpose which is usually for employment.

If you struggle with your school work or have needed accomodations from the school due to your disability-these are factors that VA needs to consider.

[Shark]

Do you receive SSA disability benefits solely for the service connected conditions?

If so-Does VA know this and did they consider your SSDI records in their decision?

Did they fully consider the letters you have as evidence stating you are unemployable?

Did the 2 VA doctors clearly state that you cannot work due to your service connected disabilities?

I see no basis for CUE claim here at all.

I suggest that you go over the SOC and see if they have missed any critical evidence in their decision.

Thanks Berta...I did send the VA the notification letter that I received from SS awarding me SSDI, but I do not think that they ever received anything from SS. I am going to go to SS and get them to send the copies of the medical info to them. I have not received a SOC yet...VARO told me that it can take up to a year just to get the SOC! The 2 VA doctors were very specific in stating that due to my anger and anxiety issues that I could not work.

[Shark]

forgot to add- when a disabled vet continues their education it can become a 2 edged sword-

the VA tried to drop my husband's PTSD rating when he went back to college under Voc Rehab-after ONE semester they thought he had become a rocket scientist.

however we overcame that idea by attaching to the NOD copies of his grades, and of his tutoring sessions (he had difficulties in school due to misdiagnosed visual condition) and also we attached copies of his accomodations requests for a note taker and special exam accomodation- he could not handle the ticking time clock they use for exams due to his PTSD)

also I certainly wrote a scathing letter to them regarding something else they tried to use against him ( 3 months of VA part time employment) and they dropped the whole idea of lowering his comp.

I commend you for being in a Phd program but VA certainly views this as attaining a high level of education for some purpose which is usually for employment.

If you struggle with your school work or have needed accomodations from the school due to your disability-these are factors that VA needs to consider.

Good point...the University has given me an accomodation for my PTSD and I am currently on academic probation, so will also provide this information to the VARO. My Psychologist pointed out in his letter that he advised me to go back to school to keep my brain occupied and as therapy for my depression. I am doing my Ph.D. on-line through Capella University as there is no school in Nevada that offers a Ph.D. in Business and my Psychologist thought that I would do better in an on-line program rather than in a regular university.

Thanks again for the advice.

Ric

[Berta]

This is exactly the evidence that VA needs to consider-

sounds like the same thing my husband went through-

someone at the VA told him to consider Voc Rehab in computers (his background was Nuclear Power and enginerring also PHVAC and fireman-HAZMAT qualified- but VA had denied him an interview for a position he was fully qualified for per OPM and we raised such a stink with the director- that the director gave him a part time position (so he wouldnt file EEOC-which he did anyhow years later against them)

I believe it was the Director himself at a meeting we had who suggested the Voc Rehab.

My husband was very intelligent but his PTSD interfered with every aspect of college-

his undiagnosed DMII and visual problems that came with that was only part of his difficulties.

It all made his anger escalate and his PTSD got worse.

SSA- been there on that- I bet VA didnt even attempt to get those records.

SSA declared my husband 100% due to PTSD in 1991.

By 1993 they still had not received his SSA records.We asked 2 state Senators and our COngressman to look into this.

The VARO wrote to them that SSA refused to release his records.

It was a bold faced lie.

I called SSA in Baltimore determined to get someone to straighten that out.

Come to find out his VA authorization form -which was in the C file- for these records was never ever sent to the SSA.

Long story- VA finally acknowledged his SSA award for PTSD in 1997. He had been dead for over 3 years by then.

Make sure VA has your signed authorization form for these critical records and that they have obtained them or definitely will.

I think they deliberately avoid getting SSA records sometimes as these records can prove a veteran's claim for TDIU.They contain in essense an independent medical opinion from a real doctor that is far more detailed usually than a 15 minute C & P exam.

This is exactly the evidence that VA needs to consider-

sounds like the same thing my husband went through-

someone at the VA told him to consider Voc Rehab in computers (his background was Nuclear Power and enginerring also PHVAC and fireman-HAZMAT qualified- but VA had denied him an interview for a position he was fully qualified for per OPM and we raised such a stink with the director- that the director gave him a part time position (so he wouldnt file EEOC-which he did anyhow years later against them)

I believe it was the Director himself at a meeting we had who suggested the Voc Rehab.

My husband was very intelligent but his PTSD interfered with every aspect of college-

his undiagnosed DMII and visual problems that came with that was only part of his difficulties.

It all made his anger escalate and his PTSD got worse.

SSA- been there on that- I bet VA didnt even attempt to get those records.

SSA declared my husband 100% due to PTSD in 1991.

By 1993 they still had not received his SSA records.We asked 2 state Senators and our COngressman to look into this.

The VARO wrote to them that SSA refused to release his records.

It was a bold faced lie.

I called SSA in Baltimore determined to get someone to straighten that out.

Come to find out his VA authorization form -which was in the C file- for these records was never ever sent to the SSA.

Long story- VA finally acknowledged his SSA award for PTSD in 1997. He had been dead for over 3 years by then.

Make sure VA has your signed authorization form for these critical records and that they have obtained them or definitely will.

I think they deliberately avoid getting SSA records sometimes as these records can prove a veteran's claim for TDIU.They contain in essense an independent medical opinion from a real doctor that is far more detailed usually than a 15 minute C & P exam.

This is exactly the evidence that VA needs to consider-

sounds like the same thing my husband went through-

someone at the VA told him to consider Voc Rehab in computers (his background was Nuclear Power and enginerring also PHVAC and fireman-HAZMAT qualified- but VA had denied him an interview for a position he was fully qualified for per OPM and we raised such a stink with the director- that the director gave him a part time position (so he wouldnt file EEOC-which he did anyhow years later against them)

I believe it was the Director himself at a meeting we had who suggested the Voc Rehab.

My husband was very intelligent but his PTSD interfered with every aspect of college-

his undiagnosed DMII and visual problems that came with that was only part of his difficulties.

It all made his anger escalate and his PTSD got worse.

SSA- been there on that- I bet VA didnt even attempt to get those records.

SSA declared my husband 100% due to PTSD in 1991.

By 1993 they still had not received his SSA records.We asked 2 state Senators and our COngressman to look into this.

The VARO wrote to them that SSA refused to release his records.

It was a bold faced lie.

I called SSA in Baltimore determined to get someone to straighten that out.

Come to find out his VA authorization form -which was in the C file- for these records was never ever sent to the SSA.

Long story- VA finally acknowledged his SSA award for PTSD in 1997. He had been dead for over 3 years by then.

Make sure VA has your signed authorization form for these critical records and that they have obtained them or definitely will.

I think they deliberately avoid getting SSA records sometimes as these records can prove a veteran's claim for TDIU.They contain in essense an independent medical opinion from a real doctor that is far more detailed usually than a 15 minute C & P exam.

[poolguy11550]

Another R/O denied my claim for IU due to the fact that the R/O I'd used to work at did not respond to the employment questionnaire two times. They did not mention any medical evidence in the decision letter. Request a DRO hearing and focus on your medical conditions. If you need help to move about the campus (I did), note that and discribe other challenges of taking classes- such taking a part time load, or taking a semester off.

Point is to get the VBA to focus (as they should) on the medical evidence.

[deltaj]

I can't recall the exact wording of this regulation but wasn't there something in the regulation about the veteran being employed 1 year or more. Also doesn't this regulation apply to reduction of a 100% rating?