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Cue Or Not


Ricky

Question

In Feb 2004 I had a claim pending for increases in ratings of back, DMII and hypertension. In Jan 05 I suffered a stroke. In responding to a 15 Feb 05 VA request for information in March 05 I included in my letter that I wanted to open a new claim for the stroke that had occured in Jan 05. In my request for a new claim I asked that the stroke be rated as 100 percent for six months as required by rating code 8008 and then rate the residuals according to their degree of disability.

In a July 05 rating decision the VA denied my request for the 100 percent rating due to the absence of a recent or active process. They further provided that they were providing a 10 percent rating for residuals with and effective of date of FEB 2004 THE DATE OF THE CLAIM. The date of the claim was MAR 05 for a stroke that occured in Jan 05. There was no stroke nor claim in Feb 04. I now finally understand their denial based upon absence of a recent active process. They are trying to say that the claim for the stroke was Feb 2004 and not March 2005.

Their failure to assign the effective date of the claim as Mar 05 has resulted in the denial. Although I pointed this out in the VA 9 I feel it is something the RO should unscrew and rate the claim properly. I just obtained two new IMO's from my family doctor and my neurologist as to when the stroke occured. I will submitt this as new evidence in support of my VA 9 and ask that the RO grant the benefits sought or issue a SSOC and just wanted to know if I could claim CUE based upon the RO's actions.

My understanding is that a cue review can be asked for on any final decision inwhich the VARO decision is final because the stupid DRO simply copied and pasted the original raters decision into the SOC.

Thanks

Ricky

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Guest rickb54

Cue can be claimed on any claim that the veteran feels has not been rated properly. You do not have to do a formal appeal to claim CUE.

CUE can be claimed at any time directly to the regional office.

A veteran does not direct a CUE claim to the BVA or CVA unless the regional office has denided the claim.

Edited by rickb54
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"My understanding is that a cue review can be asked for on any final decision inwhich the VARO decision is final because the stupid DRO simply copied and pasted the original raters decision into the SOC. "

The sameo sameo cut and paste tactic of the so called De Novo (new) review process is one more stall tactic on the part of VAROs to get rid of a claim at their level and fail to decide it properly.

This is a Violation of Duties of DROs as found in their own M21-1 manual. I had to send my DRO a copy of her own job description because I got a sameo sameo too-

http://64.233.161.104/search?q=cache:3nC0w...art+IV+Decision

On the I-9 make sure you state that you preserve on appeal ALL errors made by your VARO inadjudication of your claim, to include any errors in applying 38 CFR and M21-1.

Also if you have not received a formal VCAA Notice-

(not the usual SOC Bull crap- but a formal VCAA Notice-with two check boxes-and some enclosed pamphlets on VCAA might be with it too----failure to send this- this too is an error on VA's part.)

However you are not near a CUE scenario at all.

Cues are not called on violations of any Duty to Assist regs

(otherwise probably 90% of us would be filing CUE claims)

CUE claims can only be filed in final, unappealed VA decisions that contain legal error to the detriment of the veteran.

There is much info on CUE here at hadit under the search button and the BVA web site has numerous claims under CUE, some succeed and some didnt.

Also CAVC Successful and unsuccessful CUE claims can be found at the CAVC site.

My RO-Buffalo is doing all of these above things to stall vet claims-

they dont read the claim or the evidence, give the vet a sameo sameo De Novo-,

fail to read the vet's medical evidence, fail to send the VCAA letter,and then they take a 930 end product code and make it look like for years they have worked the claim.

If you have a valid claim and I certainly know you do- the BVA will Remand it back to them if they see you never got a VCAA telling you what you specifically need to succeed.

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Thanks guys for your replies. Let me clarify a couple of issues. The RO was working on a re-opened claim in Jan/Feb 05 when I had my stroke. I simply replied to a letter on the re-opened claim and at the same time filed a claim on my stroke. The RO took the stroke claim approved it for residuals and gave it the EED of the re-opened claim which was Feb 2004. In doing this it made it appear that my stroke happened in Feb 2004 so in Apr 2005 when I filed an original claim for the stroke there was no need to apply the 100 percent rating for six months as it appears on paper that the stroke occurred over 15 months ago when in reality it happened only 30 days prior to submitting the claim for it.

In the SOC they provided that service connection was awarded with an effective date of Feb 2004 ( 13 months before the stroke occurred) for residuals and the 100 percent did not apply since there was no recent activity.

only after reading the SOC over and over a thousand times since they did not provide any reasons and basis for the denial of the 100 percent and did not discuss any of the evidence associated with the stroke claim have I finally realized what is going on. They awarded an effective date for the stroke 13 months prior to the stroke occurring which allowed them to deny my request for 100 percent for six months for a recent stroke. How good of them to give me 10 percent for over a year on a claim that did not exist.

Now my problem - how do I un-duck this. I noded based upon a rating decision that provided no reason for the denial, then I filed a form 9 based upon a carbon copy DRO De Novo Review SOC which is still pending. Only 8 months later have I figured out what they really did. Do I write the RO? Do I file another NOD on the effective date? Can I file another NOD since the issue is pending appeal with the BVA? I want to go there and kick their a$$ for incompetence but do not desire to go to jail. Do I amend the VA 9 with a statement in support of the case? What, what, what? Hell I am going crazy over this one......

I also have current IMO's from treating physician and treating neurologist that provide the stroke occurred in Jan 06 and there is no evidence of any stroke damage prior to the 06 stroke.

Ricky

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No takers yet! I guess that you guys are as confused as I am. Today I received an IMO from my treating physician which provided that the stroke did occur on 20 Jan 2005 and there is no other evidence in my medical history (he has been my doctor since 91 during active duty and post retirement) of a previous stroke.

Therefore, I intend to forward this to Montgomery as new evidence and ask that they review it and award the benefits sought or issue a ssoc. In the letter, I will once again explain their error in awarding the claim with an effective date of Feb 2004 and how this error has cause a denial of the requested benefits. I will try to walk them through it step by step begining with the Apr 2005 letter that requested a 100 percent rating for six months under rating code 8008 and how they erronously combined this request with my 2004 re-opened claim which ducked every thing up. Maybe they will have some pity for once and will see it the vets way which in accordance with 38 cfr. Wish me luck.......... updates will follow.

ps if anyone has any other ideas let me know before I send this letter which will probably be Friday of this week.

Ricky

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Ricky -you have to expalin this stuff to them like they are 12 years old.

I recently had to do that-step by step-for example-

very patiently-I explained their deficient decision on a CUE-I asked for a Reconsideration-- until I got to the part where they said in a letter sent to me 2 weeks ago "the veteran never filed a Sec 1151 claim."

They are trying to get out of an SMC CUE claim I filed.

I replied "The Hell He didn't !"

and then carefully documented this fact with much evidence-which is clearly all in the c file-but they never looked for it-

Sometimes you have to use some command presense- or whatever it takes to get them to read your stuff.

A War of the words-

I get what you are saying- make sure they get a copy of that IMO- they lose the good stuff-dont send an original-

I would watch the NOD dates but you might ask for a Reconsideration instead of filing the formal NOD_yet BUT- watch the NOD date-

they could fart around with a recon and allow the NOD time to pass-

without answering it-then you are screwed on the retro-

In any event- you presented this here in a way that made absolute sense.

But you are dealing with people under tremendous pressure and they skim though everything-

On the I-9 if you sent it in already- you can add an Addendum to it- you can download more blank I-9 pages at the VA web site-(I think ????they are there)

Or simply put in CAPS ---ADDENDUM TO APPEAL FILED ____ (date)

If they have sent (they might not have told you yet) the appeal to the BVA already- you have 90 days to supply more evidence-

regardless of what the BVA transfer letter says- I think it is best to send additional evidence not only to the BVA but also copy to the VARO.

It sounds to me like you have 2 decisions that require Notice of Disagreement on each- and these should be sent separately -one for each-

Oddly enough- I have had this experience-

I got decisions here and there over the last 12 years that didnt make sense on a few things and they actually corrected this all in a few weeks-

and like I said I found they snooked me on monthly DIC payment and a year DIC retro and they sent the money in about three weeks after they got my letter- not an NOD- just a letter asking them to do the math again-

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