Question On My Claim

[Berta]

VA just confirmed whereabouts and status of my claim via 800.

It again appears that the CUE claim must be resolved before the formal IHD claim.The man said the PC indicated that both claims can "go forward" on March 7th. ????

I said what couldn't they 'go forward' prior to that but he couldn't tell why from the PC. ???

The CUE claim was filed in July 2004.

This is my question-under the CUE the VA failed to give any diagnostic code or rating whatsoever for my husband's documented IHD.

Although it was granted under FTCA and Sec 1151 as well as his totally disabling FTCA and 1151 CVA, the CVA was given DC and rating but it was all wrong.

VA refused to award SMC and they were wrong there too.Thus the CUE.

Consequently these all became direct SC AO disablities last year by BVA award.

The CVA is easy to rate. 100% direct SC (I forget what the right DC should be.)

The IHD has to be rated at a staged rating for 4 years -1988 heart attack and then IHD to 1992 as then in 1992 an ECHO reveals a 60% IHD rating was warranted.

The veteran died 2 years after the ECHO with IHD as cause of death and CVA contributing.

I have asked VA to award 100% for the 2 years coming after the ECHO.

The 60% ECHO results didn't happen overnight so that could involve up to 60% staged ratings prior to the ECHO.

The VA as you all know admitted to malpractice on all of above now SC disabilities -so that isnt the issue.

Although VA was aware of my husband's heart disease for 6 years they did nothing to diagnose and treat it and hid it in the med recs but I found it.(FTCA/Sec 1151 award)

Question -so since VA has no evidence whatsoever medically to say Rod's heart disease was not at 100% level for most of the time after the 1992 ECHO to his death due to their proven failure to treat it, do you think would they have the nerve to say it was only at 60$ SC up to day of his death?

Has anyone here ever had situation like that?

My claim is under Nehmer -has VA ever told anyone here that-as of a certain date- their claim will 'go forward'?

The 800 rep said there is no indication of any letters to me at all regarding this claim under Nehmer from the VAMC-True.

I have 2 Irises confirming it is Nehmer accrued.He said they must have all they need to "go forward".whatever that means.

[Berta]

Thanks all.

If they award 60% IHD I am prepared to fight that with the autopsy and the OGC medical reports.

[broncovet]

Berta

I will add this. I suggest you take into account 2 legal principals that I think the VA will argue against you.

1. Rule of "harmless error" vs prejudicial error. The Va sometimes will admit to their errors we point out but says they are harmless and dont affect the outcome. We have to carefully watch "who" has the burden of proof to demonstrate that the error was outcome determantive. In CUE, the error has to be outcome determinative, it is not enough that the VA did not comply with VCAA notice requirements, because those errors are supposedly not outcome determanitive.

2. Chevron dereference. In the 1984 landmark case, this was established. While I am not a lawyer, my interpretation of "Chevron deference" is kind of like the "soverign immunity" of the king of old times. Once the king says it, everyone else is wrong and must comply with the king. If Congress makes its

"intent" clear, but the legislation, then case law or whatever is not going to overturn congress intent. Mostly, we have congress intents on our side...benefits are to favor the Veteran..throughout legislation. We need to nail them on that...make em explain why in your case "favor the Veteran" does not apply.

[stillhere]

Unfortunately I agree with the staged and the 60% rate and I will tell you why. I am pretty sure they will use the last echo as the barometer especially if Rod did not complain to his PCP as to heart pain or anything to require a either echo or cath.

One of the things I have always noted these past years in dealing with the VA is they will use the paper trail to support their decision on all our diseases.

As far as your Nehmer to me it seems they are playing with you because of past dealings. now I don't mean out to get you, but the Cue and the present Nehmer at 7 years is totally unacceptable. I don't know how you do it.

My Nehmer claim established in oct. 09 was denied in what November of 2010 and I have not pro sued an appeal yet but I have a stress test for Monday with my private cardio doc and I plan to present it to him.

The care that your Rod was getting was sub standard as you know. My cardio doc requires me to have a yearly check up stress test to make sure nothing else has slipped by on me and he WANTS to keep me alive!

I also have a damaged heart because of waiting the first time and not going to the ER because I believed the inappropriate test that the VA had used to deny me in the past!

[john999]

You can't use violation with VCAA as part of a CUE. The VA does not even have to send you appeal rights in your decision letter. All they have to do is make a decision, but even if they make an error it must be "undebatable" that it would have made a difference in the outcome of the rating decision. This is a very high standard to overcome. If five doctors say you have severe PTSD and one says you are just a drunk the DX of PTSD is not "undebatable" according to CUE standards. At least that is what the BVA says.

[Berta]

Right-VCAA violations are not part of any CUE claim.One does not receive a VCAA letter for a CUE claim.

The medical evidence must be documented and established.

You can only support a CUE claim with legal evidence.

I will keep my claims issues to myself from now on.

When I said I could get an IM0- that was for the AO IHD claim-filed in 2010.

which is a totally separate issue from my CUE claim. I guess I didn't make that clear.

The AO claim I filed in Aug 2010, as I stated to VA -could render my CUE issues moot.

But they have to decide the CUE because it is almost 7 years old and in appeals before they decide the AO IHD separate claim.

I don't give a hoot in hell about any SMC accrued money. I had to fight them for almost a year to get the money my last award letter generated.It was the regulations themselves that got me that money.

I am holding the VA accountable for their own regulations that should have applied to my husband and to my subsequent claim decided in 1998.

And I am documenting exactly how the VA treats widows of veterans- for future testimony I intend to give the H VAC.

"I am holding the VA accountable for their own regulations" that is worth repeating.

If you have sound medical evidence and a nexus and are still being denied-

the regulations that govern your claim are probably being violated by VA.

I have had responses from VA that are absurd and based on no established VA case law

whatsoever -as some of these raters are making it up as they go.

Edited March 6, 2011 by Berta

[jbasser]

Berta, I call that SOP. It was supposed to mean standard operational procedure.

My definition is Flying by the (Seat of their Pants),

Making up the rules as they go.

J