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How My Cue Succeeded


Berta

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  • HadIt.com Elder

This might help any veteran or widow if the VA made a clear and Unmistakable Error regarding a SMC issue in a final VA decision.

If the VA had enough documented and established medical evidence to warrant SMC consideration ( to include a prior established 100% SC award) and then an additional and separate SC disability of at least 60% was established ,but VA failed to infer and consider SMC, that means the VA committed a clear and unmistakable error.

Special Monthly Compensation is established by a statute and as a benefit it is mandated to be inferred and decided on whenever the established medical evidence warrants it to be. 38 USC 1114.

I filed CUE on a final 1998 VA decision in 2004. The awarded it this past week.

It never went to the BVA and the VA managed to convolute the very simply issues I raised at the regional level for many years. It was set for BVA transfer in August 2010 but my AO IHD claim referenced it and they decided it in Philadelhia with my IHD claim.

My CUE claim also stated they violated the Rating Schedule in 38 USC on my husband's CVA ratings and also the decision lacked any rating or diagnostic code whatsoever for my husband's fatal ischemic heart disease.3 CUEs in one.

I sought proper SMC consideration as well as a properly rating on both disabilites, to include a proper diagnostic code for the IHD.

As Evidence I used my husband 100% P &T SC for PTSD award letter with an EED that predated the cued decision so this was well established medical evidence.

I used copy of M21-1MR Part VI, March 25,2003 Change 102, Erratum under 3.09 ISSUE and 3.10” Inferred issues and Ancillary benefits” to support the SMC mandate in 38 USC 1114.

I also knew that the established evidence had to be in VA's possession for purposes of CUE and I thought that would be the problematic part of my CUE.

Although the 1998 decision listed as Evidence ,a VA Central Office report,I didnt know if the Buffalo VARO had the entire medical evidence from that report so I sent it all them ,stating that all the medical evidence at time of the alleged CUE ,whether at VA Central or Bffalo VARO, was in fact “in VA's possession” at time of the alleged CUE.

I reminded VA that along the veteran's 100% PTSD award , I explained why the veteran had 2 separate SSA awards and the initial award was solely for the CVA , and the next award solely for PTSD was due to a reconsideration by SSA.

The IHD was a part of the 1998 decision (an award under 1151 for VA causing the veteran's death due to CVA and IHD)

Even though this was an award, it also was a 'denial' of SMC consideration.They didnt even mention SMC at all in that award so I felt it was a denial of SMC.

I also sent a limited amount of established med recs regarding my husband's fatal IHD which the VACO reports covered well.

This was a CUE issue under Section 1151 disabilities in 2004 but I tried to keep the 1151 factors out of this post as I dont think they would apply to anyone here. The regs are the same for 1151 and SC in this SMC respect.

If anyone needs, I will gladly state the legal evidence I used for the 1151 aspect -as I believe that evidence would apply to anyone's claim for CUE under SMC regarding 1151 disabilities.

Basically the CUE was simple, lack of SMC consideration that was legally warranted by the established medical evidence, and CUEs made on the CVA ratings and lack of diagnostic code and rating for the IHD.

In addition to the 1151 factor, this was also a widow's claim based on a claim that my husband had pending at his death under 1151 but I left out that part here because that situation doesn't crop up much at all. I found only 4 similar cases of SMC accrued at the BVA filed by widow claimants and none were CUE claims.

My original CUE claims (2) were incorporated into one by VA covering the 3 separate issues I cued.

The original CUEs were short and to the point legally ,all stated on one page ,with the enclosures I mentioned.

Since 2004 I could hardly believe some of the crap the VA sent me over the years in order to keep denying these CUE claims.

They even stated that the veteran had never asked for SMC consideration himself as one reason for denial.

I asked them in turn for a copy of the specific regulation that would require the veteran to do that, for proper SMC consideration.Of course there is no regulation.

I rebutted every denial and kept sending them my legal evidence (which never appeared on any evidence list they sent and was completely ignored by the RO).I should have waived further RO consideration but I believed someone at Buffalo would at some point, read the evidence and I was wrong.

At this time I also was dealing with my AO DMII claim and I was iving with an illusion with that one too.

Only the BVA read my evidence for that claim. The RO ignored it all there too.For 7 years.

My long point here is that CUEs can succeed.

The medical evidence MUST be established and in VA's possession.

While sending med recs can help address and define the CUE issue , the main issue is solely the legal evidence that shows VA broke their own regs and M21-1MR regarding that established medical evidence.

A CUE can be made, as in my case, by failing to apply a regulation properly and also by taking pen in and to put the wrong rating and/or diagnostic code on the rating sheet.Or worse yet- to even fail to rate and give a DC too a well established disability under SC or Section 1151 NSC.

The Philly VARO under Nehmer resolved the IHD CUE issue. They then awarded the CVA rating under Section 1151.

I feel that rating is still wrong and will appeal it. But I need a break from it all first!!!!!! I am hiding the decision for a few days or weeks to clear my mind. blush.pngwub.pngohmy.png

CUE claims should be fairly simple to prepare and simple for VA to decide.

Of course one must read over lots of CUE info etc to make sure they have a potential CUE before they even start.

But again I remind that the VA might well try to confuse and confound you enough that you give up on the CUE in frustration.

Rebutt everything they say that is incorrect as to VA case law, make them cough up the proof of any fictitious 'regs' they appear make up, and fight them until you WIN!!!!!!!!!

It kind of pisses me off to realise how much time fed emloyees at VA took to creatively deny the CUE issue since 2004 with bogus crap

never once considering my legal evidence,when the VA had to pay me the money anyhow and it was in my bank the same day I got the award letter this week.

Time that could have been better spent properly adjudicating another widows or veterans claims instead!mad.gif

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Hi Berta,

I just learned about Special Monthly Compensation for Loss of Creative Organ.  I decided to see if it was possible to do a CUE to receive back SMC pay, and ran across your article.  Thanks so much for posting this; it gives me hope and is very educational.  

I was service connected at 0% when I retired in 2009 for a procedure that caused sterility.  I believe I should have been given SMC under "When loss or loss of use of a creative organ ... resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted."  

Your post has taught me two things vital to my situation.  1.  I can do a CUE for Special Monthly Compensation.  2.  I did not have to claim the SMC to be entitled to it.

Thanks for all you do to help veterans get their benefits.

JustGettingStarted

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  • HadIt.com Elder

This is a 1994  CUE award for sterility:

https://www.va.gov/vetapp94/files1/9402838.txt

It appears the vet claimed this in 1978 or 1979 ---even at the SMC K award level (10% SC) he got a nice chunk of retro for 15 years.....

"Your post has taught me two things vital to my situation.  1.  I can do a CUE for Special Monthly Compensation."

You Bet

"2.  I did not have to claim the SMC to be entitled to it."

The mandate of SMC ( I won a SMC cue on a 1998  decision that contained 4or 5 errors,the most recent was a CUE denied and then awarded in about 4 weeks., due to the mandate-here somewhere under a search)

I am sending the CUE (I filed it days after the denial March 2015, and the award April 3, 2015 to the new Secretary to support my recent request that he make my CUE within appeal timeframe tactic into a regulation or Fast letter)

The mandate provides that SMC must be considered whenever the established medical evidence warrants it to be considered.

That is the main focus of your CUE...and how I worded my SMC  CUE- here also under CUE forum.

If they did break the mandate then they will read your legal rationale and correct the rating the CUE claim covers.

There are over 3 thousand sterility decisions at the BVA...I dont know if you could get a higher than 10% rating for this.

Others here will chime in.

 

 

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If the VA misapplied say part 4.97, for a sucking chest wound,where they had previously said "there was no lung injury, and because they failed to even look and see that PFT/FEV test showed 71%, so essentially the same thing someone else alluded to:..they failed to use the CFR 38 part 4.42, 4.56. 4.97 and also denied severity, is that CUE?

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