Cue As Part Of The Nod, Or Separate Action?

[hedgey]

As I mentioned last month, my DH got his decision letter for his claim. He's not satisfied, so he's filing a NOD and probably a CUE.

My question here has to do with the VSO who has POA for both my husband & I. He works for the local gov't entity, and is affiliated with the American Legion.

Now throughout the claim process, my DH has not received any correspondence from the VSO. Plus, DH submitted some supporting military documents and an IMO to the VSO, neither of which were mentioned in the decision letter, indicating to us that the submitted items didn't make it to the VARO.

Now we know that submitted documents get lost at the VARO, so we're not blaming the VSO for that (okay, maybe we are, just a bit). BUT, DH hasn't heard a peep from the VSO's office about the decision being completed, the rating, nothing at all.

It just seems a bit lacking that the VSO didn't even call or send an email to make sure DH had received the decision letter. The letter states that a CC went to the VSO.

Just to add to our disgruntlement, I have claims pending, too, and haven't heard word one from this guy, either.

When we call his office, he's never available, and it's as least as likely as not that he won't return our call.

Maybe we expect too much? We're hesitating to let him get involved with the NOD or the CUE.

Anyone have any recommendations as to VSO? We went to visit the State rep, but after sitting in his office for a half hour, listening to people call him and leave messages on his answering machine (including very personal information) we decided not to go with him. We just didn't like the idea that someone else might later listen to our messages while meeting with him...

[hedgey]

Carlie, thanks for merging me :)

We don't have his Decision Letter from 1985, at least we haven't found it yet. He's sent in a written request for his C-file, so hopefully it'll be in there. What we do have is his Rating Sheet (I think that's what it's called). It says:

Your claim for Disability Compensation has been approved as follows:

Monthly Rate Effective Date

$376.00 2-01-85

Service connection has been established for:

Shoulder Joint Condition, Left 30%

2nd Degree Burns 10%

2nd Degree Burns 10%

COMBINED 50%

The combined evaluation is not determined by adding the percentages of your

disabilities as shown but is computed by using a combined rating table.

This award is subject to recoupment of $22,500.00 which represents 75% of the

Readjustment Pay received from the Service department. When this amount is

recovered, full compensation will be paid.

It was dated May 1985. He had to repay the $22,500 that the Army had given him as severance pay when he separated before the he started getting compensation from the VA. The VA just withheld his payments close to 5 years.

[carlie]

hedgey,

I really know very little regarding severance pay, but by chance does the severance

pay paper work list or shown the conditions or whys and hows that the severance pay

is being paid for ?

I hope you get a full copy of the C-file with all prior claims,Rating Decisions

AND C&P exam results included.

jmho,

carlie

[hedgey]

Carlie,

So far we have almost no information about the severance pay, except for the amount as it was shown on his DD214, and then what was mentioned on his VA rating sheet (shown below). The severance pay is kind of moot point - it was paid back 20 years ago.

The issue at hand seems to me to be whether his original rating VARO made a blatant error by rating him at only 10% & 10% for 2nd degree burn scars which were clearly from 3rd degree burns, plus they completely overlooked the burns on his head & back.

Naturally, he should have appealed immediately back in '85, but he had no VSO representing him, and no clue at all as to what he should expect or what his rights were. He got out of the Army and went home. A friend of his father's, who worked at the VAMC, said get thee to the VA! So he set up an examination, spent a half hour being looked at, and 4 months later got the letter I quoted below. He doesn't remember filling out a claim form, but I'm sure he filed for "shoulder & scars".

What he want to have happen is this:

1) He wants the two 30% SC ratings for his head and back that were just newly awarded retro'd back to 1985.

2) He wants the increases for the two 10% SC ratings for 2nd degree scars that were increased to 30% & 20% retro'd back to 1985.

We think both those things should happen because the VA screwed up royally by missing and/or ignoring the presence and severity of his scars. The new decision states that the scars are from 3rd degree burns (which they were - on his hands, arms and left shoulder, the bones were exposed and burned).

He's filing a NOD on the decision because:

3) They denied his claim for an increase to his left shoulder which has worsened considerably over 25 years. They denied because the examiner pushed him beyond the edge of pain and measured his ROM while tears rolled down his cheeks.

4) They denied his claim to SC his hands due to pain & ROM loss. They denied this for the same reason as above, plus the examiner observed him pulling up his socks without difficulty. (I was there: the man was dressing as he could to get the f#$% out of there). They also claim that there is nothing in his file which supports that his hands were injured in the military, despite the fact that there is scarring AND he has submitted two documents that involved him having to allow someone else to sign for him because he couldn't hold a pen (dated a month apart, showing the severity of the injuries).

BUT the bottom line question is this: Does he include the request for retro on items 1 & 2 in the NOD, or should they be addressed separately?

I know I'm repeating myself, I'm very sorry if I'm beating a dead horse here. I just need to be sure the horse isn't going to get back up and bite us in the backside when we turn away!

Edited April 13, 2010 by hedgey

[Pete53]

My advice is to win the claim and than ask for retro when he gets award. Has to wait longer but I feel makes the whole thing a lot cleaner and faster.

By the way if you read every post on Hadit you would discover that winning and earlier effective date is a very rare occurrence although we talk about it a lot.

[carlie]

Carlie,

So far we have almost no information about the severance pay, except for the amount as it was shown on his DD214, and then what was mentioned on his VA rating sheet (shown below). The severance pay is kind of moot point - it was paid back 20 years ago.

The issue at hand seems to me to be whether his original rating VARO made a blatant error by rating him at only 10% & 10% for 2nd degree burn scars which were clearly from 3rd degree burns, plus they completely overlooked the burns on his head & back.

Naturally, he should have appealed immediately back in '85, but he had no VSO representing him, and no clue at all as to what he should expect or what his rights were. He got out of the Army and went home. A friend of his father's, who worked at the VAMC, said get thee to the VA! So he set up an examination, spent a half hour being looked at, and 4 months later got the letter I quoted below. He doesn't remember filling out a claim form, but I'm sure he filed for "shoulder & scars".

Hedgey,

The ONLY ways you could get an effective date back to 1985 would be by a) claiming and winning a CUE.

The 1985 rating decision, may have been a poor decision but that does not in anyway mean there

was a CUE made. From what you have posted so far I do not see a CUE.

b) locating SMR/STRs that were not available for whatever reason in 1985 - but have now been located

and can be part of the record.

As for second degree burns V. 3rd degree burns you would have to go by the Schedule of Rating Disabilities

and the medical evidence OF RECORD at the time the 1985 claim was adjudicated.

If the medical evidence stated second degree burns then that is what the decision maker had to go by,

to make their poor decision.

It will be good to get the C-file with all the information.

What he want to have happen is this:

1) He wants the two 30% SC ratings for his head and back that were just newly awarded retro'd back to 1985.

Hedgey - I see a few possibilities for 1)

a) If in the 1985 claim, he specifically filed for SC of scars for his head and back and those issues were never adjudicated

the claim for those could still be open. If they are in fact unadjudicated issues then he could file a NOD on the effective date.

b) If there was a CUE (legal basis) made in the 1985 rating decision.

Keep in mind that any medical evidence gathered AFTER the 1985 decision can not be used in a CUE claim.

c) If there was some newly discovered SMR/STRs factored into the current rating decision.

2) He wants the increases for the two 10% SC ratings for 2nd degree scars that were increased to 30% & 20% retro'd back to 1985.

We think both those things should happen because the VA screwed up royally by missing and/or ignoring the presence and severity of his scars. The new decision states that the scars are from 3rd degree burns (which they were - on his hands, arms and left shoulder, the bones were exposed and burned).

Hedgey - The evidence contained in the new decision can not be used to apply to the 1985 decision

He's filing a NOD on the decision because:

3) They denied his claim for an increase to his left shoulder which has worsened considerably over 25 years. They denied because the examiner pushed him beyond the edge of pain and measured his ROM while tears rolled down his cheeks.

Hedgey - 3) as soon as something hurts - scream !

I feel he will need an IMO/IME to get an increase.

4) They denied his claim to SC his hands due to pain & ROM loss. They denied this for the same reason as above, plus the examiner observed him pulling up his socks without difficulty. (I was there: the man was dressing as he could to get the f#$% out of there). They also claim that there is nothing in his file which supports that his hands were injured in the military, despite the fact that there is scarring AND he has submitted two documents that involved him having to allow someone else to sign for him because he couldn't hold a pen (dated a month apart, showing the severity of the injuries).

Hedgey - 4) No comment.

BUT the bottom line question is this: Does he include the request for retro on items 1 & 2 in the NOD, or should they be addressed separately?

Hedgey - In my opinion, for him to just request a retro date for issues 1 & 2 in the NOD would just be a

quick denial. There must be specific rules of law and evidence to support it, at the time that decision was made.

I know I'm repeating myself, I'm very sorry if I'm beating a dead horse here. I just need to be sure the horse isn't going to get back up and bite us in the backside when we turn away!

Hedgey - I think without having the entire claims file to include all SMR/STRs, prior claims filed to include the 21-526, C&P's, medical records and Rating Decisions in writing - that horse will chew off your rear end.

jmho,

carlie

[hedgey]

Carlie!

Thank you so much for going through each of my questions like that. I know you understand the feelings we're having, and it really helps to have someone go through the issues step by step. We're reacting emotionally to what feels like a clear-cut case, but when you spell it out, it's a clear case of Maybe, at best.

He has a year to file the NOD, etc., so that should give the VA plenty of time to get his C-file into his hands, and NARA more time to get his SMR's to him, and me more time to root around in the back of the back of the darkest closets for more paperwork I just can't believe has been tossed or lost.

Calmer now. Thanks everyone!