Filing A Claim For Clear And Unmistakable Error In Bva Decision

[foleyj]

I am hoping that there is someone here that can help me with this. I am SCD 20% for DDD and had spinal fusion of L4-L5 on 7/8/2009. I was admitted to the hospital on 7/8/2009 and released on 7/12/2009. I was given a letter from the discharging surgeon that I would require 3 months of convalescence. I submitted a claim on 8/7/2009 for a convalescence rating of 100% for the 3 month period that I would be on convalescence. I received my decision on 1/25/2010, here is where it gets confusing. I will first post the decision and then I will point out the things that I think are confusing according the the regulation.

Decision:

An evaluation of 100% has been assigned effective August 7, 2009 based on surgical or other treatment necessitating convalescence. Hospital records indicate that you underwent L4-L5 laminectomy and S1 fusion, on July 8, 2009. The statement from the physician indicated that you would need a three month period of convalescence. The 20 percent is continued form November 1, 2009, first day of the month following your three month period of convalescence. The effective date of the temporary 100 percent evaluation is August 7, 2009, the date we received your claim for benefits. The effective date of reduction back to 20% is November 1, 2009 the first day of the month following your release from the convalescence period.

Points of Confusion:

1. The rating decision assigned the effective date of the convalescence as 8/7/2009 which was the date the claim was received. According the 38CFR 4.30 A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release.

The effective date should be the date of hospital admission which would have been 7/8/2009, not 8/7/2009 which was the date the claim was received.

2. Even though they assigned the effective date as 8/7/2009 I was only paid for 2 months instead of the 3 months that was given by the order from the doctor. I was only paid for September and October the rating went back to 20% on November 1st.

I am not sure why I was only paid for 2 months even if they had the wrong effective date.

So what I need is, first for someone to look at this and make sure that I am not mistaken in my assumptions that the rating was not assigned correctly. Also if it is correct what is my next course of action? Do I file and NOD? A letter of Reconsideration? Or a CUE claim? Any help would be appreciated.

Thanks

Jason

[carlie]

Or a CUE claim? Any help would be appreciated.

Thanks

Jason

foleyj,

I don't see it as a CUE at this point as there has not been any final adjudication

and the one year mark hasn't gotten here yet to file a NOD.

jmho,

carlie

[foleyj]

foleyj,

I don't see it as a CUE at this point as there has not been any final adjudication

and the one year mark hasn't gotten here yet to file a NOD.

jmho,

carlie

What would your recommendation be? My understanding about a CUE claim is that it is generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied. In my particular case I would think that the regulatory provisions were not applied correctly. Specifically the assignment of the effective date, and the payment of only 2 months instead of 3 as stated by the physician.

[carlie]

What would your recommendation be? My understanding about a CUE claim is that it is generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied. In my particular case I would think that the regulatory provisions were not applied correctly. Specifically the assignment of the effective date, and the payment of only 2 months instead of 3 as stated by the physician.

foleyj,

At this point I would see it as a procedural error and not a CUE

and I would file a NOD as you still have time.

carlie

[john999]

Remember a CUE is for a final and unappealed decision.

[Vync]

This might explain what happened to you. When I got my recent SC increase, one of the effective dates was Sep 2, but they did not pay me at all for Sep. Instead, they said my effective date of payment was Oct 1 and I was paid starting from that date forward. It seems they can rip us off like that. The same may have occurred in your case, IMHO...

[Berta]

You could send this back to them:

"that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release."

And tell them you feel they made a clear and unmistakable error in the effective date and therefore the payment amount of compensation is wrong.

I did this many years ago because they didnt know how to add or multiply and called it their CUE. They fixed in 3 weeks.

More recently I didnt mention they should CUE themselves (forgot to) but pointed out they either owed me about 11 thou or 300 or both-

They owed me an entire year of DIC as well as about 300 they snookered from my monthly DIC checks. They fixed that very quickly too.

It actually looks like they could have made a typo- I see it the way yo do-the date of admission was the EED.