Cue Question About Denied Claim

[smilen66]

Good Evening Everyone,

Many of you may know my claim was denied last week. I've settled down some and was finally able to read the entire claim decision today.

In Section 3, sc was denied for degenerative joint disease for thoraculmbar because my service treatment records show only 1 complaint of low back pain (Oct. 20, 1982).

My tour of Duty was 9-22-80 through 9-23-84

Entries in my treatment record:

• 11-6-1980 back pain
  
  
• 12-3-1980 Thoracic Back Pain (Taken by Ambulance to Emergency Room)Note made by Dr.: Injury 3 weeks ago with persistent pain.
  
• 1-16-1981 Right Lower-Mid Thoracic Pain
  
• 10-20-1982 Pain in Mid Section of Spine
  
• 7-8-1983 Back Pain Inferior border of Right Scapula
  
• 3-7-84 Right Thoracic back pain
  

My question is wouldn't the above be considered a mistake made by the rater, if there are other treatment days in my service treatment record?

Thanks for responding!

[Berta]

Carlie -you are correct as always on these CUE questions.

Back pain claims like this usually need a very strong medical opinion as to origin in service and chronicity.

Asking the VA to CUE itself can be done in certain cases when the decision is legally inaccurate.I dont see that potential here at all.

My recent award letter contained clear and unmistakable error which I immediately pointed out to the VARO.

Instead of closing the claim due to grant of full benefits (one of their errors) it is with a DRO again and still pending.

I stated the award was legally and morally incorrect and then cited 6 legal errors they made.

They dont care about the moral part-they cannot close this claim (and take credit for a EP at bonus time) until they properly award the ancillary benefits and offset refund from FTCA.And make a proper rating of my husband's numerous SC disabilities.

My past CUE call against them got me a second DRO review at which my vet rep was present.

Unfortunately by then the DRO had still not learned how to read.

Edited August 31, 2009 by Berta

[carlie]

Carlie -you are correct as always on these CUE questions.

Back pain claims like this usually need a very strong medical opinion as to origin in service and chronicity.

Asking the VA to CUE itself can be done in certain cases when the decision is legally inaccurate.I dont see that potential here at all.

My recent award letter contained clear and unmistakable error which I immediately pointed out to the VARO.

Instead of closing the claim due to grant of full benefits (one of their errors) it is with a DRO again and still pending.

I stated the award was legally and morally incorrect and then cited 6 legal errors they made.

They dont care about the moral part-they cannot close this claim (and take credit for a EP at bonus time) until they properly award the ancillary benefits and offset refund from FTCA.And make a proper rating of my husband's numerous SC disabilities.

My past CUE call against them got me a second DRO review at which my vet rep was present.

Unfortunately by then the DRO had still not learned how to read.

Berta,

I KNOW - YOU ARE NOT going to let them have the satisfaction of that EP code

until everything is finished CORRECTLY, especially the damned FTC offset !

You and I,are both like a dog on a bone !

And to think --- some people see tenacity as a negative :)

carlie

[Judy]

My original claim for widow's SC DIC was filed immediately after the death of my vet spouse (1990)and denied, appealed, remanded and denied (over a period of 5+ years)... there it lay until I "reopened" the case in 2007. Now it was denied again and I requested "reconsideration" with an IMO and claim was granted (ONLY back to 2007 when it was "reopened").

My question now is .... do I have a CUE here for the EED as they made an error in denying my claim for SC DIC back in 1990 at the original filing?

Also, separate question here if I may. He was reduced from 100% to 30% by VA when I applied for ed benefits (less than 18 months after discharge from service at 100% permanent rating USAF..cancer). Wasn't that a huge error? The reduction was done WITHOUT a C & P exam as far as I can tell from reading the C-file. I do not see any reference in the med rec's that support any C & P exam at that time.

Looks like they should have to pay for that schooling that WE paid for when they denied the benefit and also, they should have to pay for the 10 years of pay loss (explaining....he left VA compensation and returned to USAF retirement rather than accept a 30% from VA at that time)..so for 10 years (until VA again rated him at 100%) his pay was reduced.

He was receiving 100% rating pay at the time of his death in 1990 and had been for 8+ years.

Hope this is not too difficult to follow, thanks for any advise.

Judy

[samiam1978]

Remember that a CUE is done on a final decision. If you have the ability to appeal a denial that is much easier than trying to prove a CUE. An example is a claim you filed ten years ago that was denied and never appealed. You look at your C-file one day and you discover some gross error the VA made that would change the outcome of your claim. That might be a CUE. The CUE is the last resort.

Hello and thanks for the reply. My CUE was file at the DRO Decision. I was called by an agents for the DRO and said that they would waive my 60 days waiting period is I had all the evidence in. My claim had been on their books already for 2 years. I told them I would if the agent would check my folder to make sure the evidence I had turned in myself and had stamped at the Veteran Affairs Office was in my folder for this review. The agents said it was. I stress to him to physically open my folder and to look at the evidence I had send in and make sure that this was in my folder. It was about 50 pages of very vital evidence. He said he was looking at all of it right them and it was there for the DRO to use as evidence. So I waived my 60 days. 10 days later I get my decision in the mail and all 7 autoimmune diseases were denied. They were denied because there was not evidence of the environmental agents I had stated except asbestos. I looked at the "Evidence Used" and the 50 pages I had ask the agent to make sure were in my folder as evidence was not listed. They were listed under Notice of Disagreement. I had two Notice of Disagreements listed after the first decision was denied. The true one sent in the alotted time and this evidence. This evidence showed where, how, and fellow sailors statements of the fact that I was exposed to these environmental agents and it was never even used. I called the agent up at the Veteran Affairs office and he snickered and said to take it up at my BVA Hearing, which I will be doing. First of all you have a certain time limit to get your NOD in and I did that. It took all of 3 sheets of paper. The 50 pages is just way too many for a NOD and it is listed as evidence. I feel it was a mistake and that is why I filed the CUE. Anybody have a response, I would appreciate it.

[Berta]

I dont see the basis for a CUE here-

You should have received a VCAA letter a few months after you filed this claim. It should have stated exactly what evidence the VA needed to have.

Based on your post you are claiming "7 autoimmune diseases"-due to exposure to 'environmental agents.'

You need medical proof that environmental agents caused your disabilities and then proof of exposure to the environmental toxins or agents.

I deal with Agent Orange issues a lot so I know you don't mean AO- do you mean Project SHAD (112)? --what environmental agents did you identify?

"They were denied because there was not evidence of the environmental agents I had stated except asbestos"

Did VA confirm you were exposed to Asbestos?

Do you have any medical evidence that asbestos could have -as likely as not- caused the Auto immune diseases you have?

[Berta]

Judy I am confused here- and I forget- was he Agent Orange vet whose AO contributed to his death?

If so -I believe they should owe back to date of death under the Nehmer Court Order.

Did the VA ever award you Chapter 35 in the past?

Did they mention Chapter 35 in the award letter you got for DIC?