I Need Help Again

[Mr cue]

ok i am about to do my recondsideration of a bva claim now if my claim was never adjudated 94and then i was granted 60% for same issue in 2001. i did a cue claim 2008 bva say there can not be a cue of a open claim.now bva did my claim and granted me 20% how is that if i met the cretria for rating code for 60% in 94.or should my 60% effective date now be 94 they treated as a reopen claim in 2001. i see a game here if i dont get 60% i have a iu claim that was remand it go back to 94 if not 60% there going to denied. any body got a cases or something like that that my help. crazy part i still have not got my retro check for 40%-94-2001 this crazy and now my iu claim is back with amc. my claims is being expidated due to hardship. and no one to call crazy.

[Berta]

The CUE claim by the way-as the BVA noted-did contain the legal citations etc that made this a valid CUE.

BVA could not take jurisdiction over it-

"In March 2004, the Veteran filed a claim arguing that the pervious February 1995 rating decision contained CUE and that service connection for cervical arthritis was warranted. Specific argument regarding the nature of this purported error, including citations to the evidentiary record, was provided."

Yulookin certainly wrote the CUE claim correctly-

they also state:

"His two clams are inextricably intertwined."

Do you have the same rep as you did then? when BVA made this remand?

Your reconsideration request-did you file it yet?

"was 10%for my neck 94 did paper 2000 was granted 60% for neck iu 2008 put in cue of 94 claim told there can not be a cue of and open claim.so shouldnt my 60%for my neck be effective 94."

You did well on the jump from 10 to 60-but it appears that because the claims are inextricably interwoven per BVA-they mean that the CUE could rest on the other claim.

(I am in same position) I have had numerous SSOCs on a CUE claim I filed in 2004 but I wrote to VA right on a DRO form that my recent award has altered that CUE significantly and they must take the award under Nehmer into consideration (which would make my CUE claim moot and still give me the benefit I seek .

It looks to me that in your case, this is what the VA might be doing- considering whether the original claim would warrant a better EED.

Was the better EED the point of your reconsideration?

As I understand the BVA decision- the original claim filed in 1994 is still open- is that how you see it?

But VA erred in saying the claim was 're-opened' and gave you their so called re-open date.

I suggest that as soon as they reply to the reconsideration request (hope they do that soon) and if they dont within a few months-that you ask them to CUE themselves on that decision as top the proper EED of the claim and send them copy of the BVA decision as evidence and highlight the BVA statement as to 1994 dates in bright magic marker colors.

I agree with you and I think your EED is 1994 here.Possibly a staged rating and not TDIU but still worth fighting for!

You did very well so far-and having the BVA decision docket # sure helped me a lot.

[broncovet]

It looks like you have been put on "the hamster wheel" for 16 years and counting. The BVA addressed your CUE claim, but your RO never did your regular timely appeal, so your claim is pending and cant be "CUE'd" because Cue only applies to a finalized claim.

Your RO needs to address your 1994 appeal..16 years later, and they continue to drag their feet, even with the BVA remand.

IMHO your remedy is a Writ of Mandamus demanding that the RO comply with the law and move forward on your 1994 appeal, as well as implement the BVA remand which required, "expiditious treatment"

Your writ will be more credible if you send your RO a "Notice of impendending Writ" to give them a chance to comply. In your notice of impending writ, you need to pretty much state what you will say in the writ. If they take your notice seriously, you may not ever have to file the writ..and that is the purpose of the notice of the writ..to keep stuff out of the courts that should be in the RO.

However, in the end, it is highly unlikely that your "writ" will be granted by the CAVC, because they almost never are. Regardless of whether or not your writ is denied by the CAVC, your writ puts your RO manager "in the spotlight" and forces their hand. Right now, the Buffalo RO wants you to simply give up on your 1994 claim and they dont have any intention of giving you your appealate rights..or they would have done so 15 years ago. In your writ, you need to let them know that you are, in fact, entitled to an appeal, and a 15 year delay of justice amounts to justice denied. You need to further put them on notice that if the RO continues to deny your rights to due process, that it is the courts (CAVC's) responsibility to force the RO's hand, and to not let them deny your appealate rights by simply waiting until you die.

You can either get a lawyer to help you with the writ (recommended) or use your VSO. Finally, I filed a writ myself on actually somewhat similar circumstances, and so can you. In my case, my writ was denied, but it accomplished its purpose of getting the RO off their duff and to make a decision. I ultimately won my claim about a year after filing the writ. I am not a lawyer, so I certainly recommend you obtain an experienced VA attorney and follow his advice to the letter.

My father once said it this way, "The squeaky wheel gets the grease". There are a million Veterans waiting on the VA. Yours deserves to be addressed promptly because you have already waited 16 years. The VA wont do that however, and they just cherry pick the easy claims and leave yours sit for decades.

Edited January 8, 2010 by broncovet

[Mr cue]

yes this my case number but bva has made a decision on my case my elbow was granted not percent give call amc told they will put a percent.granted 94-2001. my neck that was the same issue in 94 is now 20%94-2001. iu remaned got letter about this yesterday. so yes this is the old bva maybe they have not post the new came dec17.dont have sanner so will have to wait to post new decision. here is my reconsideration letter any way.

eThis is my letter asking for reconsideration of my bva decision.

First I would like to say that I believe my cases should be reconsider on the bases that my claim from 94 was for increase of the initial 10% give to me for my neck. I appeal and believe that since my claim was for and increase claim for my neck form 94 that was never adjucadated and I put in paper in 2001 which were treated as new material and I was granted 60% for my neck I believe my effective date should be 94. For my 60% rating I was rated under 5322 some one with a gunshot wound and I had no gun shot in 94. U have changed my rating code. Now to 5293 I don’t see how you can even say that I did not meet the requirements for a 60% rating under rating code 5293 in 94. A 60% rating is warranted when the intervertebral disc syndrome was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk or other neurological findings appropriate to the site of the disk.

I had neck spasm in 93 on med 200 report it tell of this all my records as u point out say that I had spasms in my neck. 94- until I had nothing but symptom that were compatible with sciatic neuropathy with pain u tell of all this and u even say that I had no neurological finding which is the last criteria for a 60% rating under 5293 I also believe there was a error of laws and regs. There must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by the va if the criteria reasonably describe the claimants disability level and symptomatology, than the claimant disability picture is contemplated by the rating schedule the assigned scheduler evaluation is therefore adequate and no referral is required. I don’t see how this was over look and it even speaks of how marked interference with employment. Should be look at and I have not worked since services. Even when u take a look at if I should get extra-schedular rating u tell that I have cervical disability manifests with pain and limitation of motion with associated neurological symptoms of sensory deficit. U never talk of my services records every thing is 94-2001 I have a med 200 report 93 from army which tell that I had neck spasms this is not talk about or my neck therapy note from service tell that I was been treated for neck spasms. The rating code 5293 is not for neurological finding it for what I have muscle spasm absent ankle jerk, or other neurogical finding.

For my elbow I believe there should be reconsideration because u says that I had problem with my hand but it would be pyramid. The board notes generally that because the veteran is already service connected for neurological manifestations of the cervical spine that he would not be entitled to a separate disability rating for neurological impairment of the left elbow please tell were is any of my neurological problem were every rated 94-until they are not even if u had give me 60% under rating code 5293 it is not for neurological defect its for the muscle spasms of the neck symptoms compatible with neuropathy. I believe this is a cue because from 94-until there is no rating give for my left elbow neurological problem so there can not be pyramid. I was in a sling for 3month after the fall my army notes tell of this. I wore 11/2after services u never talk of any reports before my comp exam 94 my army records are there u talk of them in the begin but nothing else.

I believe you are not rating me 60% so that I can not get my IU which was remanded. I have not work since services due to my disability. And that u are cueing laws and reg that were in effect in 94 I believe I should get reconsideration due to all this. The non-adjudication of a claim expressly raised by the veteran. If the record shows veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim. So please tell how it is that I was granted 60% in 2001 and my claim for my neck was still open so my effective date is now 1994. I believe this is an error of the law.

Please take a look at what is been done this not right I have not work due to this I have no ssi credit to get ssdi when older and I was pay 89.00 why my claim was never done I was not even look at for a pension. And it was part of the record then that I was not working I believe. That there are many things that have to be reconsider in my case. On decision u look at all the different rating codes u got to 5293 60% and u made no reference. That is an error of reg and laws I believe. All of my records where do I get relief I have over 17 yr of doctor report on the same thing. My neck and left arm.

My cases has been advance up the docket due to my hardship and I was granted retro pay and I still have not rec a letter or any thing please help with this. I was granted 40%-94-2001 I done even no who to talk to that say amc has it there is no way to get to them they don’t answer iris or e mail I have fax things before they don’t get them.

You remanded my IU claim for a doctor to tell if I could work in 94 is this for really I have been in voc rehab with 10% because of my employment handicap. I have not and was not working in 94 comp exam 94 say that I was not working my SSI earning reports show that I have not work in all these years all of this is part of the record. But some doc that has never treated me. Can tell if I could have work in 94. I believe this is an error of the law all of my records say I was not working. How is it because my claim was over look for 17 yr that u can just for get that I won in 2001 so my effective date is 94 u are trying to do my claim all over again how can this be right please tell me.

If everything I am asking for was won in 2001 and then it is found that my claim from 94 is still open is my effective date now 94 pleas answer this because I believe it is the law. And I believe u are error the law here.

[Berta]

Have you sent this yet?

Can you get a good vet rep to support you on this?

Did Voc Rehab at any point say they had to discontinue your Voc Rehab due to your SC disabilities?

If they did that is good evidence of TDIU.

Yes-you are right-they should have considered you for a pension as well as comp if you had wartime service with limited income.

Did you make it clear here however that you want a reconsideration?

A BVA reconsideration request must be in form of a Motion and filed with the BVA.

I thought at first -you were asking the RO to reconsider-

How long has it been since they granted but didnt send any retro yet?

[Berta]

PS-the form of Motion just means you should put Motion for Reconsideration on the left hand side of the first sheet

then V Shenseki

Motion for Reconsider of BVA decision dated ------ c file #

XXXXX your name

V.

Secretary Eric Shinseki

This is a Motion for Reconsideration of your(dated ) BVA decision,

Then state the reasons and bases for request.

They might not be holding to this Motion format like they used to.If anyone knows for sure please let me know-

And they used to require 3 copies of the Motion I think-

They then decide the Motion .I dont know if the BVA publishes them.

I had a BVA decision on a Motion years ago-and typed it up that way I put above.

it was a denial -however they spelled out clearly that I was due offset FTCA refund if I succeeded in direct SC death.

At that time I never dreamed I could even prove direct SC death.

The Motion decision was instrumental in getting the OGC to contact my VARO recently for refund of the FTCA Offset.Good thing I save everything from VA .

I am sure the BVA will not reject this from you but not 100% sure- anyone know how BVA handles this type of stuff these days?

[broncovet]

Berta..Gee you are a whiz, but is it not true that you have to file a MfR within 90 days of the BVA decision, or the BVA decision becomes final?