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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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4myboys

Cue Yes Or No ?

Question

To: Department of Veterans Affairs

Decision Review Officer

In regards to Clear and Unmistakable Error found in the original rating decision by the Department of Veterans Affairs on behalf of ____________; the following Code of Federal Regulations was not, as required by law, applied:

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

At the time of initial rating evaluation, September 1999, all medical records including SMR's, MRI's, EMG's and numerous pages of Doctors reports/evaluations/diagnosis' were in the hands of the rater.

Veteran's Application for Compensation or Pension dated January 7th, 1999

Nature and History of Disabilities Section 17.

SCD's: Ruptured & Herniated Discs, Sciatic Nerve Damage, Degenerative Disc Disease, Dehydration of Lower Lumbar, Migraine Headaches, Severe Chronic Back Pain, Spasms, Chronic Sinusitis & Bronchitis, and all other SCD's as noted in SMR's.

Sciatic Nerve Damage was specifically requested as part of my reason and basis for compensation.

1999 Rating decision Reasons and Bases:

Service connection for central disc bulge L5-S1 has been established as directly related to military service. This condition is evaluated as 40% disabling from April 22nd 1998.

Next paragraph:

August 1997 and MRI revealed TWO disc bulges, the largest one at L5-S1 and contact but did not compress nerve roots….

(In the same paragraph diagnosed sciatic neuropathy defined)

Straight leg raising was positive on the left at 20 degrees with radicular pain from the lower back to the left posterior buttock and left gastrocnemius muscle. X rays showed Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of S1 nerve roots.

Clear and Unmistakable Error in FACT recorded in rating decision per CFR 38 Part 4.2. Section 4.2 in CFR Interpretation of examination reports: It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.

Impression as taken from the actual MRI findings report dated August 11th, 1997.

1. Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of the S1 nerve root, left greater than right.

Also in record to support continued and unremitting Sciatic Nerve damage was EMG findings dated January 14th 1999.

EMG Findings:

There were moderate chronic neurogenic changes in the form of poor activation and increased duration of amplitude of many to all the remaining motor units in the left flexor digitorum longus, extensor digitorum brevis and semitendinosus muscles. There were mild to moderate neurogenic changes in the left tibialis anterior muscle.

Impression:

EMG and nerve conduction studies of the lower extremities and related paraspinal muscles reveal changes suggestive of left L5 Radiculopathy. This is moderate in degree of electricity.

Service Record documents from:

Neurosurgery Clinic dated January 9th 1998.

Diagnosis: Chronic Back Pain/Herniated L5-S1

Left S1 Radiculopathy Left Leg

Findings from Physical Evaluation Board Proceedings:

Diagnosis and Ratings:

Category 1:

  • Chronic Back Pain/ Herniated L5-S1

    Category 2:

    • Left S1 Radiculopathy, Left Leg related to diagnosis 1.

1. The September 1999 rating decision contains clear and

unmistakable error in not only ignoring evidence but denying entitlement to service connection for Sciatic Nueropathy as part of the original diagnosis and rating of: CFR 38 Part 4 dated 1998-1999: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief rating of 60%. CFR 38 Sec. 4.21 Application of rating schedule. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. Based on the requirements of the Law at the time of decision and evidence of a Clear and Unmistakable Error, I am entitled to a retroactive date to initial claim January 7th, 1999 with an effective date of April 22, 1998 for compensation at the 60% level.<BR style=mso-special-character: line-break"><BR style="mso-special-character: line-break">

Edited by Tbird
Removed Personal Identifying Information

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1. Did you appeal the Sept 99 decision?

2. Do you have an active appeal on any issue?

3. Are you relying on CUE because you don't have an active appeal?

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Did not appeal 99 decision. I did not see the Error in fact. VSR rep saw the CUE and pointed it out to me.

I have already sent in CUE claims. I have a DRO hearing in 8 days.

Went on a CUE claim because that's what the VSR said to do.

This is where it becomes frustrating. I along with many was ill advised. I never knew to order C File until the VSR pointed out the CUE. I was told by my POA (DAV) take the 40% don't fight it or they can take it away. (I didn't know any better at the time, young, ignorant and injured!) I also didn't know anything about the CFR's....all of this came about with the help of a VSR.

It seems as though Vets are punished for not being detectives, doctors, raters, lawyers, etc. It was the raters job to perform his duties accurately, it was the raters job to ensure all medical records were reviewed with accuracy, it was the raters job to ensure I had the proper percentage assigned. (that's all law according to the CFR's)

So in a sense...at the time I didn't disagree, I just didn't see the error.

1. Did you appeal the Sept 99 decision?

2. Do you have an active appeal on any issue?

3. Are you relying on CUE because you don't have an active appeal?

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I have a DRO hearing in 8 days. Went on a CUE claim because that's what the VSR said to do.

I can understand the frustration... Have you pulled up all of the BVA and court decisions on CUE? I'm not an expert, but I know that YOU need to understand the caselaw and reasoning so that you can make sure your facts qualify for a CUE claim. You should have also pulled up any decisions that speak to your specific issue; particularly any decisions that came on appeal. For the best success, use a variety of search terms and when you read decisions, pick out the case references sited in the verbage.

Good luck with the hearing,

sheila

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I have read quite a few...but always end up with the "well I have that, but maybe not that??? or that's exactly what the rater did or didn't do"

What are the best websites to pull up BVA decisions?

Thanks for your advice! I really take everything said into account and use the advise to further research my claim! Thank you!

I can understand the frustration... Have you pulled up all of the BVA and court decisions on CUE? I'm not an expert, but I know that YOU need to understand the caselaw and reasoning so that you can make sure your facts qualify for a CUE claim. You should have also pulled up any decisions that speak to your specific issue; particularly any decisions that came on appeal. For the best success, use a variety of search terms and when you read decisions, pick out the case references sited in the verbage.

Good luck with the hearing,

sheila

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There are CUE claims from the BVA in our CUE forum here and at the BVA web site (via VA web site) you can search them by year, putting CUE or clear and unmistakable error into the browser.

My former rep saw something odd in a 1998 decision I got and mentioned to me it seemed odd but then did not advise me to file a NOD and told me to be happy as it was an award anyhow.

I filed CUE on this "odd" thing in 2004 and it still has not been resolved.

The VA recently put the CUE claim with my current AO IHD claim and maybe that will resolve it.My original cue claim was only 2 or 3 paragraphs,I stated the regs they broke (wrong DC code for 1151 CVA and NO Diagnostic code or rating at all for my husband's misdiagnosed fatal heart disease.)

I added additional legal evidence , SMC regs, M21-1 statements as to applying those regs, and included one or two General COunsel Precedent Opinions and 4 BVA decisions with BVA legal interpretations of the regs that I filed CUE on as to lack of proper application.

The VA refused to consider my husband for Special Monthly compensation even with a 1151 100% CVA (now SCed) and 100% SC PTSD

and IHD from 60 to 100% 1151 in 1998, now SCable under his last award (May 2010) (I am still in appellate period for NOD on that) and the new AO regs Now that these are direct SC AO disabilities they granted direct SC death but still failed to consider him for SMC as an accrued benefit.

They said in one SOC that he was not eligible for SMC "under any circumstance." That statement defies all VA case law and regs regarding SMC.

But the statement is not a CUE- their legal errors in the 1998 decision holds the CUE.

You seem to have a very legitimate CUE claim here.

I would have worded it differently-

and cited the CUE regs,

This is the first paragrap[h of my 2004 CUE claim:

"To whom it may concern:

This is a claim under CUE, 38 USC, 5109A.

I believe that VA erred in the lack of application of 38 USC 1114 regarding the above veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death.

Also I believe VARO committed a CUE regarding the SMC as an inferred issue due to their July 1997 receipt of a 2 page report from XXXXXX XXXXXX, MD,MPH of VACO Medical Services which VARO referred to in the Sec 1151 decision and which, in Dr. XXXX narrative"etc

I then listed and enclosed the SMC regs,the lack of rating for one 1151 disability and the wrong rating for additional 1151 disability , the above FTCA report which VA used to determine the 1151 award and other legal evidence.

Since VA has had this claim for 6 years already, I added even more legal evidence over the years.The last I heard was it was going to be transferred to the BVA (which is good -the BVA can read) but then after the AO IHD presumptive regs were proposed, the CUE claim was pulled last month and sent to Nehmer VA people as it hinged on my Nehmer claim.

If you feel this is a strong CUE basis and your rep does,I certainly feel you should pursue this.

I should have presured my rep for what he meant about the decision-and filed a NOD right away then.

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