I Have A Cue, A Nod, A Rating Increase Request And A New Condition To Get Sc For...best Way To Do This?

[Bill (USAF Retired)]

The good news: VA bumped me from 70% to 80% and have finally gotten off their duffs and paid me $14K in back pay (from date of retirement to date of award). Mrs. Bill is most pleased with me for not giving up the fight.

The bad news is that I have Round 2, a four-part claim. I need to:

1) NOD a rating I just received, and request a bump from 50% to 70%.

2) CUE my original rating for another condition. The record AND the rating decision both recite facts which clearly call for a 30% rating instead of the 10% I got.

3) Apply for service connection and rating of a new condition, because it is secondary to an existing 50% rated condition.

4) Apply for increase from 10% to 30% in yet another condition. I was at 10% because it was partially controlled with medication, but the doc says continuing to take said medication could kill me. That got my attention and I stopped taking it, so the condition is no longer controlled and has worsened.

Question: Can I do all of this in one claim, or do I need to split it into multiple submissions (NOD, CUE, and then do #3 and #4 as a combined claim)?

Thanks in advance for any insight or suggestions you care to provide.

Bill

[deltaj]

The good news: VA bumped me from 70% to 80% and have finally gotten off their duffs and paid me $14K in back pay (from date of retirement to date of award). Mrs. Bill is most pleased with me for not giving up the fight.

The bad news is that I have Round 2, a four-part claim. I need to:

1) NOD a rating I just received, and request a bump from 50% to 70%.

2) CUE my original rating for another condition. The record AND the rating decision both recite facts which clearly call for a 30% rating instead of the 10% I got.

3) Apply for service connection and rating of a new condition, because it is secondary to an existing 50% rated condition.

4) Apply for increase from 10% to 30% in yet another condition. I was at 10% because it was partially controlled with medication, but the doc says continuing to take said medication could kill me. That got my attention and I stopped taking it, so the condition is no longer controlled and has worsened.

Question: Can I do all of this in one claim, or do I need to split it into multiple submissions (NOD, CUE, and then do #3 and #4 as a combined claim)?

Thanks in advance for any insight or suggestions you care to provide.

Bill

A CUE claim cannot address any evidence not of at the time of the decision when an error was made so that CUE should be filed seperately.Each V.A. decision requires an NOD which addresses all issues on that decision including service connection, percentage of rating, application of rating schedule, effective date, etc. Remember you get only only one NOD with each decision so made it comprehensive and complete in terms of issues and in terms of V.A. law and regulations. I am undertain what to tell you about the issue of combining 3 and 4. Personally, I'm inclined to think that you should separate these into 2 claims since one is an increase and the other is a claim for service connection on a new condition.

[Bonzai]

I have been waiting to see an answer to this question, because I remember a post where someone had made the statement "if you combine all diagnoses into one claim, then the VA will lowball one and deny all the others, effectively tying up everything in the one claim". But I couldn't find it, or even remember who posted it.

Louis

Edited August 25, 2009 by Bonzai (see edit history)

[john999]

What claim is going to be the money claim? I think I would file the NOD and then combine all the other claims including the CUE. The quicker you get a denial on the CUE the quicker you can file an appeal. If we are talking a lot of retro then your VARO probably won't approve the CUE. If your CUE is strong hire a lawyer to to forward to the BVA and beyond. I filed two claims including a CUE. The new claims were granted the CUE was denied. You will get a VCAA letter on the new claims,but not on the CUE, unless they don't know what they are doing. There are some here who can do CUE's but I suggest getting professional help. How far back does your CUE go in time?

[carlie]

The good news: VA bumped me from 70% to 80% and have finally gotten off their duffs and paid me $14K in back pay (from date of retirement to date of award). Mrs. Bill is most pleased with me for not giving up the fight.

Bill,

Congrats and spend your back-pay wisely.

OH - sorry for that my friend, I just realized YOU probably won't get to spend much of it ~ lol, so tell Mrs. Bill to spend it wisely.

The bad news is that I have Round 2, a four-part claim. I need to:

1) NOD a rating I just received, and request a bump from 50% to 70%.

70% - does the medical evidence listed in the rating decision state what's

needed to meet the requirement's for a grant at 70 % ?

2) CUE my original rating for another condition. The record AND the rating decision both recite facts which clearly call for a 30% rating instead of the 10% I got.

What is the date that "original rating" for another condition was made ?

Did you ever file a NOD on that rating decision and request 30 % instead of 10 % ?

3) Apply for service connection and rating of a new condition, because it is secondary to an existing 50% rated condition.

So the new condition of what _________________,

is secondary to an existing SC'd disability of ________, as shown by

medical evidence of _______________________.

4) Apply for increase from 10% to 30% in yet another condition. I was at 10% because it was partially controlled with medication, but the doc says continuing to take said medication could kill me. That got my attention and I stopped taking it, so the condition is no longer controlled and has worsened.

Did the doc put this in writing somewhere in your records ?

Can you tell us what the medication and condition is ?

carlie

Question: Can I do all of this in one claim, or do I need to split it into multiple submissions (NOD, CUE, and then do #3 and #4 as a combined claim)?

Thanks in advance for any insight or suggestions you care to provide.

Bill

[Bill (USAF Retired)]

Carlie, John999, Bonzai and Deltaj, thanks for responding :)

Carlie:

does the medical evidence listed in the rating decision state what's needed to meet the requirements for a grant at 70% ?

It's really on the borderline between the two, but in my admittedly biased view the clinical picture more closely approximates the higher rating. I'm in constant treatment for this, so the medical record keeps strengthening my case. I figure I should NOD it because that gives me a shot at retro, and then if nothing else they may say "no, our original decision was right but you deteriorated to 70% on (insert date)."

2) CUE my original rating for another condition. The record AND the rating decision both recite facts which clearly call for a 30% rating instead of the 10% I got.

What is the date that "original rating" for another condition was made ?

Did you ever file a NOD on that rating decision and request 30 % instead of 10 % ?

The original rating decision was issued in May 2008, retroactive to 1 November 2006.

If you are prescribed a certain category of medication for that condition, it's supposed to be a 30% rating.

They recited that I was receiving that medication and then gave me 10%.

No, I didn't NOD it. I was a bad boy. Frankly, I was grateful to get the 70% right out of the barrel.

Since it's 1) over a year since the original rating decision, and 2) clearly erroneous on its face, that's my cue (ha, I slay me!) to file a CUE. (Deltaj, does it sound like I'm on the right track here?)

So the new condition of what bilateral hand tremors , is secondary to an existing SC'd disability of PTSD/major depressive disorder (severe), as shown by medical evidence of tremors worsening as primary condition intensified, clonazepam prescribed by VA neurologist to treat said tremors having no effect whatsoever, VA neurologist finding no organic cause for said tremors, said tremors being well-known sequelae of PTSD as documented in (insert literature), it is more likely than not that my bilateral hand tremors are psychogenic rather than neurogenic and are sequelae of my existing service connected PTSD.

(Note for the combat guys: I am not one of you, I was a REMF. I would never want anyone to infer this was combat related. Y'all got yours the hard way, I was just in the wrong place at the wrong time.)

4) Apply for increase from 10% to 30% in yet another condition. I was at 10% because it was partially controlled with medication, but the doc says continuing to take said medication could kill me. That got my attention and I stopped taking it, so the condition is no longer controlled and has worsened.

Did the doc put this in writing somewhere in your records ? Can you tell us what the medication and condition is ?

Migraines, partially controlled with Imitrex. I was receiving Imitrex for them through TRICARE, as it is not VA formulary. The chief of psychiatry for my local VAMC looked at my med mix and noted in my records that I should not continue to take Imitrex (when combined with my other meds) it could cause potentially fatal serotonin syndrome. All my plans revolve around not being dead, so I listened to the good doctor and stopped Imitrex. The migraines are no longer controlled by medication, and their frequency meets the criteria for a 30% rating.

Again, thanks to all.

Bill

[Bill (USAF Retired)]

Carlie, one more thing :)

I shared the news with Mrs. Bill and the first words out of her mouth were "what are you going to do with it?" I set aside enough to fund a trip to Wales, then paid off bills with the rest (almost debt free now, woohoo!)

[Berta]

The CUE as a Legal Error might be that they used the wrong diagnostic code from 38 CFR when they rated 10 instead of 30-

sounds like a clear cut CUE to me-

Bonzai-I know what you mean here-but dont recall the CAVC decision that seemed to indicate that one denial was a denial of all claims raised.

The fact is a VCAA letter should be prepared for every issue the veteran claims,and each should receive a decision that can be appealed.(Unless all were for secondarys except for primary disability and the VA denied SC for the primary disability)

Maybe someone here could recall this case?

I would if I were you Bill USAF-

File the CUE on separate page as it is distinctly different from the other stuff.

I could tell when VA started to deny my CUE claims that someone other then the person handling my other stuff knew enough about CUE to attempt an unusual way to deny it.

Someone told me there are raters with CUE expertise that are given CUE claims-dont know if true or not-

if my main AO death claim had gotten the attention that my CUE claims did- my award would have come years sooner.

I have plenty of legal evidence for my CUEs yet that all has remained ignored so far.These claims have been at the VARO since 2004.

Oddly enough the recent award I got rendered these CUES moot as they have to decide now on what the CUEs covered.

I explained this to them in a letter and told them they cannot send these CUEs to the BVA (I did file an I-9) as the BVA would readily comnprehend what I meant by "moot" issue-due to the recent BVA award.

COngressman Filner and Chairman Terry got a copy of that letter in response to many letters they sent to me on my main claim.

I am still pissed about this issue.

VA said Rod was "not eligible under any circumstance for SMC consideration."

100% SC P & T PTSD

100% CVA under Sec 1151

100 dead due to CAD under Sec 1151

100% CVA due to AO DMII (now SC)

100% CAD " ' " "

100% dead due to Agent Orange complications of DMII

DMII -not rated yet

CAD and HBP not rated yet

Not eligible for SMC my butt- they committed CUE but the new decision made this easy for them to award under Nehmer and accrued regs.

I told them keep the "S" and give me the highest SMC rating possible (I think I aksed for R-1 based on the clinical record)

VA will attempt to confound a CUE issue-

and as you can see -they stall on this type of claim.

[carlie]

Carlie, John999, Bonzai and Deltaj, thanks for responding :)

Carlie:

does the medical evidence listed in the rating decision state what's needed to meet the requirements for a grant at 70% ?

It's really on the borderline between the two, but in my admittedly biased view the clinical picture more closely approximates the higher rating. I'm in constant treatment for this, so the medical record keeps strengthening my case. I figure I should NOD it because that gives me a shot at retro, and then if nothing else they may say "no, our original decision was right but you deteriorated to 70% on (insert date)."

Bill - so on the 70 % you are requesting that VA grant the higher percentage,

due to this 38 CFR reg ?

§ 4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

carlie

******************************

2) CUE my original rating for another condition. The record AND the rating decision both recite facts which clearly call for a 30% rating instead of the 10% I got.

What is the date that "original rating" for another condition was made ?

Did you ever file a NOD on that rating decision and request 30 % instead of 10 % ?

The original rating decision was issued in May 2008, retroactive to 1 November 2006.

If you are prescribed a certain category of medication for that condition, it's supposed to be a 30% rating.

They recited that I was receiving that medication and then gave me 10%.

No, I didn't NOD it. I was a bad boy. Frankly, I was grateful to get the 70% right out of the barrel.

Since it's 1) over a year since the original rating decision, and 2) clearly erroneous on its face, that's my cue (ha, I slay me!) to file a CUE. (Deltaj, does it sound like I'm on the right track here?)

Bill - I would not necessarily think there's a C&UE so fast here,as it can also be just a poor decision,which are frequently made and may not rise to the level of CUE.

Is this by chance for a respiratory condition ?

What was the medication and were you RX'd that medication back to the ED of Nov. 2006 ?

carlie

**********************************

So the new condition of what bilateral hand tremors , is secondary to an existing SC'd disability of PTSD/major depressive disorder (severe), as shown by medical evidence of tremors worsening as primary condition intensified, clonazepam prescribed by VA neurologist to treat said tremors having no effect whatsoever, VA neurologist finding no organic cause for said tremors, said tremors being well-known sequelae of PTSD as documented in (insert literature), it is more likely than not that my bilateral hand tremors are psychogenic rather than neurogenic and are sequelae of my existing service connected PTSD.

(Note for the combat guys: I am not one of you, I was a REMF. I would never want anyone to infer this was combat related. Y'all got yours the hard way, I was just in the wrong place at the wrong time.)

4) Apply for increase from 10% to 30% in yet another condition. I was at 10% because it was partially controlled with medication, but the doc says continuing to take said medication could kill me. That got my attention and I stopped taking it, so the condition is no longer controlled and has worsened.

Did the doc put this in writing somewhere in your records ? Can you tell us what the medication and condition is ?

Migraines, partially controlled with Imitrex. I was receiving Imitrex for them through TRICARE, as it is not VA formulary. The chief of psychiatry for my local VAMC looked at my med mix and noted in my records that I should not continue to take Imitrex (when combined with my other meds) it could cause potentially fatal serotonin syndrome. All my plans revolve around not being dead, so I listened to the good doctor and stopped Imitrex. The migraines are no longer controlled by medication, and their frequency meets the criteria for a 30% rating.

Bill - as long as you have the medical evidence for this - I too

would request the higher of two evaluations.

carlie

With characteristic prostrating attacks occurring on an average once a month over last several months30

With characteristic prostrating attacks averaging one in 2 months over last several months10

Again, thanks to all.

Bill

Bill,

Just FYI - I'm not making my postings above larger and bolder as in screaming,

I'm doing it to differentiate in what I'm posting, that's all.

carlie

[Bill (USAF Retired)]

Carlie -

Thanks for the response and for making sure I knew you weren't shouting :D

You cited 38 C.F.R § 4.7 (2008). On the request to bump 50% to 70%: I figure the way to attack it is

1. Prove overwhelmingly that I meet the 70%. If I meet that hurdle, then life is good and they bump me.

2. If I don't quite have enough to make an ironclad case for 70%, at least show that I'm closer to 70% than to 50%.

The CUE:

Ooh, you're good. Yes, asthma with Advair prescribed continuously since military service. Advair is a lovely inhalable hockey puck containing fluticasone propionate and salmeterol.

Fluticasone propionate is a synthetic cortiscosteroid derived from fluticasone. Among its many wonderful properties (I am a big, big fan of breathing!), it is an inhalational anti-inflammatory. Salmeterol is a beta-2 adrenergic receptor agonist drug which produces bronchiodilation.

The original rating decision recites as fact that my daily use of Advair began on active duty and that I'd been on it continuously.

Advair is an inhalational bronchiodilator therapy and/or inhalational antiinflammatory medication. The record upon which they rated me at 10% clearly notes I'm on daily Advair. When you look at the criteria for 30%, however...

6602 Asthma, bronchial:

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 30

to 70 percent, or; daily inhalational or oral

bronchodilator therapy, or; inhalational anti-inflammatory

medication................................................

The record noted Advair, the rating decision acknowledged Advair, and the rater still erred. Oops. CUE time.

Last: Migraines -- yes, it's documented to a fare-thee-well :P I have them frequently, but I don't contend that they "are productive of severe economic inadaptability." I'm an evening migraneur, so it just *CENSORED*s with my home life.

Thanks again for the perspective/feedback!

Bill