Bva Remand Cue And Nod Intertwined

[pacmanx1]

The Board remanded the claims, in part, in December 2008 so the RO could address motion for revision based on CUE in October 1998 and November 2003 rating decisions. The RO issued an October 2009 rating decision which denied both motions. The appellant then submitted a November 2009 Form 9, in which he reiterated an argument that the earlier determinations overlooked his IBS and assigned him an incorrect rating, and failed to conduct appropriate development in 2003, and improperly assigning a 30 percent rating for psoriasis. The Board finds that the appellant has disagreed with the October 2009 rating decision as to the determinations regarding CUE and evinced a desire for appellant review in using a VA Form 9. Remand for issuance of a Statement of the Case on the CUE motions is warranted. See Manlincon, supra.

The appellant's earlier effective date claims would be render moot if revision based on CUE is granted. Thus, they are intertwined with the CUE motions. See Harris, supra. The board defers again of those claims at this time.

Please keep in mind that I am just trying to get an earlier effective date of both issues. VA had the evidence in my file but failed to review my entire file. Since I was already awarded the increase I am just seeking to correct Va's' mistake in not reviewing my file. It sounds like BVA agrees with my claim but there are other issues that have to be address also. I am just interested in your thoughts on this part for now. As I said, once the remand comes available, I will post it and ask for more opinions.

Edited June 5, 2010 by pacmanx1

[john999]

Your CUE's are on unappealed final decisions, correct?

[pacmanx1]

Yes, they are unappealed final decisions

Edited June 5, 2010 by pacmanx1

[Berta]

The actual wording of the remand will help us understand this more-

Good for you for pursuing this!

[pacmanx1]

Berta, this is part of the remand that I just received. I just keep reading it over and over again and it sounds like to me that it is very much in my favor. I am waiting for it to come up on the BVA search so I can post the whole remand. So I am thinking that I gave them enough information to prove that VA should award me an earlier effective date on both issues and then reopen my other claims. I am not sure how long it will take to come up on the BVA web search but I will definitely post it when it comes up.

[carlie]

pete992,

They are in the middle of putting the April 2010 BVA decisions on line as of last week.

carlie

[pacmanx1]

Carlie, this is what the BVA instructed the RO to do.

Accordingly, the case is REMANDED for the following action:

1. Provide the appellant with a statement of the case as to the issues of service connected for sleep apnea and for the motion to revise the October 1998 and November 1999 (INSERT I THINK THIS IS A TYPO AND SHOULD BE NOVEMBER 2003) ratings decision on the basis of CUE. The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 CFR 20.200, 20.202 and 20.302. If a timely substantive appeal is not filed, the claim should not be certified to the Board.

2. Then, the RO should re-adjudicate the claims on the merits. If the benefits sought are not granted, the appellant and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

Then it goes on to say the standard that I can submit additional evidence blah, blah, blah.

Here is the catch, when VA did the rating in October 2009 they tried to put in another denial of my Cue claims and used a 1999 Doctor statement that I had IBS but it did not list any symptoms. I then filed a VA form 9, and stated that my records showed that I was hospitalized in 1996, 1997, and 1998 and VA failed to review my entire records, all this information was already in my file. After I won my claim for increase, I then got a copy of my private records and in them I found a letter from VA requesting the information and a letter from my doctor an all the treatment records that was sent to VA that listed my symptoms and emergency room/ hospitalized treatment records in 1996, 1997, 1998 and 1999.

As to the cue for skin, my claim was on appeal in 1998 and the regulation changed in July 2002 and BVA remanded this claim and VA awarded me an increase to 30% but failed to give me a new C & P exam until I reviewed the change in the regulation and asked for an increase. VA then requested a C & P exam and awarded me the higher increase but I feel that, my records showed that if VA had given me the exam after the regulation changed and prior to my 30% increase that I would have been awarded the 60% increase based on the C & P exam, therefore they failed to follow their own regulation.

I also filed a claim for sleep apnea and was denied, VA said that sleep apnea was a respiratory problem, I filed a claim stating that I was service connected for depression (claimed as sleep impairment, fatigue, depression) but VA said that sleep impairment was a symptom and not a disability, I had two sleep studies that diagnosed me with sleep apnea but VA still denied me, I then went to the VA hospital and got a Medical Evaluation (IME) of my sleep study and the neurologist reviewed my VA hospital records, including my C & P exams for depression, and fibromyalgia, and asked a lot of questions then wrote a statement using all this information and stated that my sleep apnea was related to my service connected depression and fibromyalgia. VA also reopened my claims for hypertension and migraine headaches based on this doctor's statement and my medical records that I have been treated for these conditions since 1999.

I Hope this makes sense

Edited June 9, 2010 by pacmanx1