tdiu Va Proposed Decrease Due To Cue

[mags1023]

I have 2 issues on appeal since 2008 and an NOD/DRO review on my claim for headaches from last year, so what do I get in the mail yesterday? A letter from the VA stating that they made a CUE when they granted me Cervical Radiculopathy last year. It looks like they are saying it is basically the same thing as my Carpal Tunnel Syndrome! It says that it considers the Cervical Radiculopathy as pyramiding on my Carpal Tunnel. I think they are saying my symptoms are the same. This is redicilous! I have pain and numbness in my shoulders that radiate down my arms. I have neck pain and headaches from it. I don't think that would be caused by Carpal Tunnel.

I know I need to request a hearing, but can I send an NOD in at the same time disagreeing with their findings?? Some rating specialist probably got an end of year bonus for this by trying to cheat me out of 10%. It says my rating will decrease from 90% to 80%. I feel like Joe Fraizer after going 15 rounds with Muhammad Ali! They are beating me down. I want to keep working, because I know if I stop going to work and sit around all day, my depression is going to get worse and worse. But, I am thinking about filing for TDIU. Any thoughts are appreciated.

s/Mags1023

[carlie]

I am waiting for my BVA hearing. St. Pete sent me a letter a couple of months ago stating my record was being transfered to BVA for my appeals (Thoracolumbar spine, MDD, & headaches secondary to cervical spine). I moved from Houston VARO to St. Pete VARO in 2008, so it has taken a lot longer to get to BVA. Thanks, Mags

mags,

On the underlined above, I'd say to expect about an 18 month wait for your hearing

to be scheduled.

JMHO

[mags1023]

Carlie:

Like I said I originally filed for my lumbar spine in 1999 when I first filed with the VA. My cervical spine was rated, but they ignored what I had in my medical record about my back and denied me for my lumbar spine. When I got a copy of my SMRs, I found the medical report form that had the times I went to the naval hospital because of my car wreck and they diagnosed whiplash and upper back trauma. I didn't have that info when I initially filed because it was on the back of the form and the corpsman that copied my record for me didn't do front and back of pages. I have an appeal with an effective date of 12/06/2006. Do you think I could possibly have a CUE agaisnt them to date back to 99 ? My hearing for the reduction is on 7/11 at Bay Pines...any advice?? I have a lawyer, so hopefully he will be effective.

[carlie]

Carlie:

Like I said I originally filed for my lumbar spine in 1999 when I first filed with the VA. My cervical spine was rated, but they ignored what I had in my medical record about my back and denied me for my lumbar spine. When I got a copy of my SMRs, I found the medical report form that had the times I went to the naval hospital because of my car wreck and they diagnosed whiplash and upper back trauma. I didn't have that info when I initially filed because it was on the back of the form and the corpsman that copied my record for me didn't do front and back of pages. I have an appeal with an effective date of 12/06/2006. Do you think I could possibly have a CUE agaisnt them to date back to 99 ?

My hearing for the reduction is on 7/11 at Bay Pines...any advice?? I have a lawyer, so hopefully he will be effective.

If SC gets granted for your lumbar condition, due to these newly discovered medical records,

that were not considered in the prior decision - it would not fall under a CUE, it would fall

under 38 CFR 3.156c.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=986d620cf92ca157f70175cc0eb26050&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.65&idno=38

3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

[mags1023]

I had my hearing at Bay Pines on Wednesday the 11th. At first the person with the schedule in the admin office was saying they couldn't find my case. Then after about an hour, they said they would get someone to hear my case. My lawyer and I went in to the room and the VA rep introduced himself and another gentleman whom he said was training. He said the guy was a senior rating specialist and was training to be a DRO. The guy running the hearing said he was a DRO. He explained that he was filling in for another DRO who was on sick leave and that is what caused the delay. He turned things over to my lawyer who stated my case and who re-iterated the heavy burden on the RO to call a CUE on itself. My lawyer then asked me some questions about my symptoms and conditions. After answering all of my lawyers questions, the DRO asked if we had anything else to say and my lawyer again said that there was no basis for a CUE. The DRO then ended the hearing and turned off the recorder. The DRO then proceeded to tell us that he was the rating specialist who intitially granted my bi-lateral cervical radiculopathy and that someone pointed out his mistake when they were reviewing my record on another issue. He said the person said, "hey you need to look this over, because I think you made a mistake on granting this". He said he reviewed the decision and then wrote the proposal to reduce the rating he granted! Now, he is the DRO on the same issue??? We didn't think to complain at that time, but now I look at it as if he should have recused himself when he recognized that it was his original case/decision. I think they should still decide in my favor, but only time will tell. I'll update this when I receive their decision. Thanks to all who have assisted and commented thus far.

s/Mags1023

[Pete53]

Same thing happened to me and I agree that it is wrong for the same person to decide if their prior decision is wrong. Good Luck

[mags1023]

Pete, how did they decide in your case? At least I know the BVA will eventually find in my favor. I have found several cases like mine where the VARO can't just change their minds after they grant connection. They have a strong burden of proof under CUE. Not just, oh we shouldn't have given it to you so we are taking it away.