Is This A Cue Case?

[redlegE4]

According to

§ 4.29 Ratings for service-connected disabilities requiring hospital treatment or observation.

If a service member was hospitalized for 21 days or more that service member is automatically grated 100% upon applying.

My father was medically discharged from the Army in June of 1978. During his service he was admitted to United States Army Hospital, Ft. Hood, TX for just under 3 months. When he applied for VA compensation he was given 10% from VA and he has 50% from the Army. He suffers from Schizophrenia, paranoid type, and he is getting worse, so I was going to help him file an increase. That is when I found his records state he was in the hospital for 3 month.

If he is eligible for a CUE how should we proceed? Should we file for an increase first then a CUE?

Thanks,

Ruben

[Berta]

You are taking that statement out of context:

http://cfr.vlex.com/vid/ratings-connected-requiring-observation-19774368

In part:

“Subpart A: General Policy in Rating

4.29 - Ratings for service-connected disabilities requiring hospital treatment or observation.A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days.

(a) Subject to the provisions of paragraphs (d), (e), and (f) of this section this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. A temporary release which is approved by an attending Department of Veterans Affairs physician as part of the treatment plan will not be considered an absence. “

There is more to this regulation in the above link. It is in regards to discharged veterans whose SC has required hospitalization for 21 days or more at a VA hospital It has to be applied for after the hospitalization period.

Is the 10% from the VA for schizophrenia?

Is he employed?

If not does he receive SSDI solely for the schizophrenia?

If his SC disability prevents him from working ,he should apply for TDIU (aid at the 100% rate of comp)

I see no basis here for CUE but maybe if you tell us more it will help-

“When he applied for VA compensation he was given 10% from VA and he has 50% from the Army.”

Could you explain the 50% from the Army? Was this a MEB or PEB rating regarding his discharge?

If so , you will need the initial VA decision granting the 10%, to see why they didn't consider a 50% military rating.

In any event yes he should re-open his VA claim with New and Material Evidence, meaning medical evidence that his SC disabilty has gotten worse.

That is an odd jump from 50% (Military)down to 10% VA.

This link might help:

http://usmilitary.about.com/od/theorderlyroom/a/medseparation.htm

“Disability Rating Percentage. Once a determination of physical unfitness is made, the PEB is required by law to rate the disability using the Department of Veterans Affairs Schedule for Rating Disabilities. DoD Instruction 1332.39 modifies those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent rising in increments of 10. “

But the article also makes this point:

“Differences Between Military Disability Ratings and VA Disability Ratings

While both the Department of Defense and the Department of Veterans Affairs (VA) use the Department of Veterans Affairs Schedule for Rating Disabilities, not all the general policy provisions set forth in the Rating Schedule apply to the military. Consequently, disability ratings may vary between the two. The military rates only conditions determined to be physically unfitting, compensating for loss of a military career. The VA may rate any service-connected impairment, thus compensating for loss of civilian employability. Another difference is the term of the rating. The military's ratings are permanent upon final disposition. VA ratings may fluctuate with time, depending upon the progress of the condition. Further, the military's disability compensation is affected by years of service and basic pay; while VA compensation is a flat amount based upon the percentage rating received. “

I assume he never appealed the 10% SC from the VA?

Does he have a vet rep who can help him re-open his claim with current medical evidence that his disability has gotten worse and also to see if he should apply for TDIU- if the medical evidence warrants it.

[carlie]

According to

§ 4.29 Ratings for service-connected disabilities requiring hospital treatment or observation.

If a service member was hospitalized for 21 days or more that service member is automatically grated 100% upon applying.

38 CFR applies to veterans benefits - not anything to do with active duty time.

My father was medically discharged from the Army in June of 1978. During his service he was admitted to United States Army Hospital, Ft. Hood, TX for just under 3 months. When he applied for VA compensation he was given 10% from VA and he has 50% from the Army. He suffers from Schizophrenia, paranoid type, and he is getting worse, so I was going to help him file an increase. That is when I found his records state he was in the hospital for 3 month.

If he is eligible for a CUE how should we proceed? Should we file for an increase first then a CUE?

He was active duty so NO he was not eligible for the temporary 100% due to 21 days or more

of hospitalization. This relates to veterans.

A claim for CUE is not relevant in anyway to what you have posted.

A claim for CUE is ONLY filed on a final, unappealed VBA/BVA/COVA decision.

Thanks,

Ruben

[redlegE4]

Hi again,

Thanks for the info, sorry I am late. I wanted to get a suggestion in my situation. While I served in active duty I was diagnosed with both Syncope and Anaphylactic Shock. All of my medical records state that my condition was an Alergic Reaction or Syncope.

When I filed with the VA they awarded me 10% for Ventricular Arrhythmias (sustained), but no where in my records does it state that is my issue. Also, it was never sustained. I have passed out many times and have gone to the emergency room numorous times. My faint spells have been related to Anaphylactic Shock and/or Syncope.

I am planning on re-filing. Am I elegible to file for a CUE? Because Syncope and Anaphylactic Shock are rated at 100%, Right or wrong? Well that is why I am asking you.

Thank you in advance,

Ruben

[Berta]

“Am I elegible to file for a CUE? Because Syncope and Anaphylactic Shock are rated at 100%, Right or wrong?"

I am unaware of any 100% rating for syncope and anaphylactic shock.

If your Ventricular Arrhythmias (sustained), has increased to the level that would warrant a higher rating ,with documented medical evidence ,by all means re-open the claim.

Diagnostic Code 7011 provides a 10 percent for sustained

ventricular arrhythmias when a workload of greater than 7

METs (metabolic equivalents) but not greater than 10 METs

results in dyspnea, fatigue, angina, dizziness, or syncope;

or when continuous medication is required. A 30 percent

rating is warranted where a workload of greater than 5 METs,

but not greater than 7 METs, results in dyspnea, fatigue,

angina, dizziness, or syncope; or when there is evidence of

cardiac hypertrophy or dilatation on electrocardiogram,

echocardiogram, or X-ray. A 60 percent rating is warranted

when there is more than one episode of acute congestive heart

failure in the past year; or, workload of greater than 3 METs

but not greater than 5 METs results in dyspnea, fatigue,

angina, dizziness, or syncope; or, left ventricular

dysfunction with an ejection fraction of 30 to 50 percent.

http://www.va.gov/vetapp07/files4/0731110.txt

I dont see a basis for CUE here.

[jbasser]

Syncope and Anahlylactic SHock are not rateable conditions. They are symptoms of some other issues.

I don't see any CUE here.

J

[redlegE4]

Ok thank you. I will refile for Syncope and file a new claim for Anaphylatic Shock.

Thank you,

Ruben