tdiu Claiming Cue Before Appeal Goes To Bva

[oldman273]

Good morning all, I got good news last week and took a weekend off after I got a Statement of the Case through the mail and decided not to let it ruin my weekend. What I have is a descion to let a claim for IU die or fight it with the following items. The VA ignored my claim for aid and attendance based on SC back issues which they granted an increase but denied the issue of house bond status based on worsening back issues which have left me unable to care for myself which is why I put in for aid and attendance and the forms with the surgeon who did my original back operation. I know that if I file a cue I open myself up to just the information on hand and I loose the benefit of the doubt rule. I do not want my claim for IU to go to the BVA as it will halt any other issues which the VA ignored. I am also going back to my surgeon with the SOC to see if he will write his opinion on my SC fusion and the facts that the VA wrote in their SOC as the reason for denial. they are as follows.

" Entitlement to individual Unemployability is denied because you have not been found unable to secure or follow gainful occupation as result of SC disabilities. I put in at first as my back was the original issue pre surgery and the VA ignored the issue of Aid and attendance and the other claims for Arthritis and the letter that my surgeon completed that I was indeed unemployable due to SC back and that Surgery was in fact needed to help my issue with not being able to move. Now that the surgery is over I am left still unable to care for myself still as i am the recipeint of a failed back operation through no fault of my surgeon just the state of advanced arthritis that was secondary to the original SC back injury in service that I am SC for. any ideas i have the whole SOC scanned but I do not know how to redact every thing so I posted it in peices. i according to the letter have 60 days to request a hearing and 1 year to appeal. I have the time just trying to figure out what I should do. i know they made several mistakes but how to call them on it and keep it from going to the BVA is the main issue. from where i sit I plan to get a ride up to the surgeons office and ask them to read the VA SOC and see if they can reply to what the VA ignored in a letter that states I am TDIU as a result of my SC back. I do not believe they cited both letters just one as my surgeon was clear in his first letter when he filled out the forms for Aid and attendance also at the time. Thanks sorry it was so long but the facts are here thanks...

[john999]

If you don't want this thing to go to the BVA you need to ask for a DRO Hearing. This will give you another bite at the apple. You will have plenty of time to get more evidence to back your claims.

[Berta]

"VA ignored the issue of Aid and attendance and the other claims for Arthritis and the letter that my surgeon completed that I was indeed unemployable due to SC back and that Surgery was in fact needed to help my issue with not being able to move. Now that the surgery is over I am left still unable to care for myself still as i am the recipeint of a failed back operation through no fault of my surgeon just the state of advanced arthritis that was secondary to the original SC back injury in service that I am SC for. any ideas i have the whole SOC scanned but I do not know how to redact every thing so I posted it in"

Did the surgeon make the point that the surgery did not cure your condition and that it failed to make a difference in its disabling affect due to the arthritis?

Has the arthritis been claimed as secondary and fully supported with a medical rationale from the surgeon?

"i sit I plan to get a ride up to the surgeons office and ask them to read the VA SOC and see if they can reply to what the VA ignored in a letter that states I am TDIU as a result of my SC back."

That would be a good idea and to go to the IMO criteria I posted in the IMO forum as well as read the IMO post that RAKK recently made. I do not believe they cited both letters just one as my surgeon was clear in his first letter when he filled out the forms for Aid and attendance also at the time. Thanks sorry it was so long but the facts are here thanks... "

The A and A is a moot issue until they decide n the TDIU. Did they acknowledge receipt of both letters from the surgeon under Evidence?

"Entitlement to individual Unemployability is denied because you have not been found unable to secure or follow gainful occupation as result of SC disabilities."

Did they elaborate on that statement?

"I know that if I file a cue I open myself up to just the information on hand and I loose the benefit of the doubt rule. I do not want my claim for IU to go to the BVA as it will ha"////

This isnt a CUE situation.

You won't lose Benefit of Doubt consideration but your medical evidence must weigh as equal to or greater then that of the VA in order to garner Benefit of Doubt.

I feel that the surgeon's letters did not adequately make the point as to a full medical rationale for TDIU and the secondary arthritis as complicating the surgical results.

It would be good if he has the SOC as well as copy of the actual last C & P exam as the SOC could have overlooked something important in that exam and has the full IMO criteria to go by for his opinion.

[oldman273]

"VA ignored the issue of Aid and attendance and the other claims for Arthritis and the letter that my surgeon completed that I was indeed unemployable due to SC back and that Surgery was in fact needed to help my issue with not being able to move. Now that the surgery is over I am left still unable to care for myself still as i am the recipeint of a failed back operation through no fault of my surgeon just the state of advanced arthritis that was secondary to the original SC back injury in service that I am SC for. any ideas i have the whole SOC scanned but I do not know how to redact every thing so I posted it in"

Did the surgeon make the point that the surgery did not cure your condition and that it failed to make a difference in its disabling affect due to the arthritis?

Has the arthritis been claimed as secondary and fully supported with a medical rationale from the surgeon?

"i sit I plan to get a ride up to the surgeons office and ask them to read the VA SOC and see if they can reply to what the VA ignored in a letter that states I am TDIU as a result of my SC back."

That would be a good idea and to go to the IMO criteria I posted in the IMO forum as well as read the IMO post that RAKK recently made. I do not believe they cited both letters just one as my surgeon was clear in his first letter when he filled out the forms for Aid and attendance also at the time. Thanks sorry it was so long but the facts are here thanks... "

The A and A is a moot issue until they decide n the TDIU. Did they acknowledge receipt of both letters from the surgeon under Evidence?

"Entitlement to individual Unemployability is denied because you have not been found unable to secure or follow gainful occupation as result of SC disabilities."

Did they elaborate on that statement?

"I know that if I file a cue I open myself up to just the information on hand and I loose the benefit of the doubt rule. I do not want my claim for IU to go to the BVA as it will ha"////

This isnt a CUE situation.

You won't lose Benefit of Doubt consideration but your medical evidence must weigh as equal to or greater then that of the VA in order to garner Benefit of Doubt.

I feel that the surgeon's letters did not adequately make the point as to a full medical rationale for TDIU and the secondary arthritis as complicating the surgical results.

It would be good if he has the SOC as well as copy of the actual last C & P exam as the SOC could have overlooked something important in that exam and has the full IMO criteria to go by for his opinion.

Thanks Berta, I did the faxing and spoke with Surgeons nurse who said she understood what the VA needed. She has some other Veterans who have dealt with VA and said she would

write up the letter as surgeon had stated in earleir letters that SC back was IU &PT.

Arhritis was claimed and Surgeon also SC it to my DDD and since the fusion my nerve damage has gotten as worse as before surgery now my tips of my fingers are numb as well. My whole spine was eat up with Traumatic arthritis due to my SC Injury.

In the SOC that they got it was noted all records from my surgeon but the letters and A/A form should have given the VA what my current medical issue are with me needing A/A in my own home.

I am probally giving too much credit as they probally glossed over my case file taking 1 item at a time. I did figure out that the A/A and arthritis and 2 other issues have not been decided on so maybe that is why it was not included in the SOC.

I stay in chronic pain so the thought of being able to work on the meds I am on would make that impossiple. Thanks for the heads up on the fact that it is not a CUE. Once I get the letter from the Surgeons do I send it in or ask for the hearing? The paper work stated I could mail it in or ask ofr a formal hearing at my VARO if I would like them to decide. If the evidence warrants a change in the case I would not need a formal hearing and the VA would resend the denial of IU. I will make a copy and mark out the information and scan and paste it on the site. I should have it this week.

Thanks for breaking it down for me I appriciate your thoughts on it I would not have filled a CUE until I had an idea on which way I should go. Once a claim goes to BVA it is gone a long time that is what I was not sure about. Adios...

[Berta]

"I did figure out that the A/A and arthritis and 2 other issues have not been decided on so maybe that is why it was not included in the SOC."

OH! This is different -they deferred -they didnt deny yet.

I recently applied for A & A posthumous award as part of my accrued SMC CUE claim under Nehmer-or they can use it as part of my recent IHD claim-

I had to read over the A & A criteria very carefully and as it says the veteran does not have to meet everything they put into the criteria.

I associated every statement I made with direct documentation from the clinical VA record, or SSA findings. These included VA Day Treatment out patient records, the PTSD inhouse program records,(my husband had gotten lost during a PTSD VAMC trip in Buffalo and this was documented ) as well as the medical records.

Then as caretaker of the veteran I made my own statement. The VA will consider a statement from a caretaker for A & A awards.

[oldman273]

"I did figure out that the A/A and arthritis and 2 other issues have not been decided on so maybe that is why it was not included in the SOC."

OH! This is different -they deferred -they didnt deny yet.

I recently applied for A & A posthumous award as part of my accrued SMC CUE claim under Nehmer-or they can use it as part of my recent IHD claim-

I had to read over the A & A criteria very carefully and as it says the veteran does not have to meet everything they put into the criteria.

I associated every statement I made with direct documentation from the clinical VA record, or SSA findings. These included VA Day Treatment out patient records, the PTSD inhouse program records,(my husband had gotten lost during a PTSD VAMC trip in Buffalo and this was documented ) as well as the medical records.

Then as caretaker of the veteran I made my own statement. The VA will consider a statement from a caretaker for A & A awards.

Good Morning I was kind of wondering that the VA never mentioned the claims at all on my SOC so I will continue to wait on the other 2 SOC I should get both of the claims are at the ratting board also. Good luck with your claims you are a tough customer when it comes to a battle with the VA I wish you great sucess most people might have given up. My wife is driving me up this morning to my appointment to ask some questions as she has caught a lot of flak about having to miss work on my behalf being bed ridden with my back for weeks at a time. Thanks for your thoughts....