Cue

[FrankieG23]

I don't have a clue on cue. I have read previous post about them. Is it better to use atty or husband's VSO? It is involving the missing of getting NSC for IHD VA had evidence (it included an ER visit), and hospital is listed on records the VA received. However, when requesting for Nehmer it was denied, but the hospital was not listed this new time (2010) as records they used. If they didn't use the records from (2001), is this also a CUE? I had called his whole family back in 2001 as hospital told me the believed he had a heart attack. I don't want to give up. I am inspired by this web site, and all the great people on it. Side note: After my call to VA, a couple days later I was contacted by JD Powers to rate VA performance!!!

[Berta]

Do you mean you have a denial on a Nehmer claim?

Is it regarding an EED? earlier effective date...........

Do you have and did the VA have an list as evidence , all of the medical records?

[FrankieG23]

Berta, Yes, husband got denial for Nehmer in rating decision of 2012. Acutual claim was for IHD and a few other things. Husband has had SC for IHD since 2003, but I had made it secondary to DMII Claim started in 2010. R/O said they also checked to see if they could award any Nehmer for EED, and it was denied. Listed in the denial in 2012, does not include records from original claim of DMII/hyertension from 2001. 2012 decision list records used from 2001, but not ER visit which is the important one pertaining to heart disease. VSO sent letter to VA, stating vet disagreed with decision as VA should have it in their records. VSO sent in copy of C/P exam from 2001. VA is advising recourse is to do CUE. Thanks, glad to see you back in action. I'm not sure what they have I haven't requested C file yet, still pending finish of claim. I just know on 2001 claim husband listed ER visit from the hospital as place to get medical records from, and VA list the hospital as records they received. Yes it says Nehmer could not be awarded after checking records, sounded like VA was required to check this.

[Berta]

Of course if he had IHD as SC to DMII, and that rating and EED was correct, then there would be no Nehmer retro.

But I think you mean their was medical evidence of IHD that preceded the DMII IHD decision?????

"VA is advising recourse is to do CUE." Hmmmmm .

I had to ask them to CUE my Nehmer decision.....

Did you contact NVLSP during course of this Nehmer claim and have a Nehmer lawyer helping you with the decision?

They took my husbands IHD back to 1988 based on his VA med recs.

He also was awarded posthumously for DMII due to AO but VA will not rate the DMII. 1151 issue.

If I know more I can ask Rick Spataro, Head Nehmer lawyer at NVLSP but then again.......

can you scan and attach the reasons and basis fgor the Nehmer denial? (cover personal stuff)

They actually denied my Nehmer claim last December and I raised such a ruckus I made them CUE themselves and do it right. About 3 weeks later I had my award letter and the retro.

I am now waiting for them to CUE the award letter . They did very good work during Nehmer but still, mistakes were made.....

[broncovet]

You never want to file a "CUE" if a regular appeal will work. That is, if you are still in the one year appeal period, forget CUE, as it is unnecessary.

Just file a NOD instead.

The reason? Cue "raises the bar" and makes your claim more difficult to prove. Don't make it harder for yourself unless you have to.

The main reason for CUE is to try to win an earlier effective date, and, Cue is not the only way to do this. Another possible way is to use 38 CFR 3.156 C, New and material service records.

[jbasser]

If you can file an appeal then you cannot file a cue. A cue is only to be filed on a final decision or 1 year after the decision was made and is cannot be appealed.

j

[FrankieG23]

Thanks all, I have not gotten the decision letter yet. No, I'm haven't contacted the NVLSP, i can't scan. There is no new evidence, just the old stuff. Thanks again for advise. No, it's still within a year of decision. Not ready to throw in towel yet. I've got my gloves still on.

[john999]

I won a cue claim. It was for SMC "S". I was totally disabled for a number of years and then got an extra 60% back in 2008. The VA should have immediately granted me "S" but they did not. I believe it was Teac and some other vets here who clued me in that under Bradley v Peake I should have gotten "S" when I got the extra 60%. I wrote a letter to my VARO and explained that I should have been in receipt of "S" since 2008 (this was 2010 I think) according to Bradley v Peake. A couple of months later I got back a decision letter saying the VA had called CUE on themselves and were awarding me "S" with retro to the date of my 60% award. At that time I had a CUE claim with a lawyer on another issue which seemed crystal clear(3 years later still at it). Usually, CUE's are just black and white and the VA uses them to address a multiple of sins and ommissions. If there is the slightest room for debate the VA will quote " the undebateable error" part of the CUE equation. You can win on two of the three roots of a CUE and fail if the evidence is not "undebatably" in your favor. That is a higher standard than they use for death penalty cases. In a death penalty case if there is doubt the accused should go free. In a CUE if there is the tiniest bit of debatable evidence the vet (must)lose.

John

[broncovet]

Remember, VA employees, VSO's, well meaning Vets advocates sometimes give advice that hurts your claim.

In the case of VSO's, you need to know that the DAV charter requires the DAV to "cooperate with the VA". This "charter" makes the assumption that the VA's interests are the same as the Veteran and the same as the VSO. Horse puckey. The VA can talk all about their "non adversarial" relationship until the cows come home. But, if its truly "non adversarial" why is it the Veteran often has to appeal multiple times to win his benefits? Why werent they awarded the first time? Why should Vets have to "fight" for their benefits if they are non adversarial.

If you are good friends (non adversarial) with your neighbor, and you need a cup of sugar, just go ask them. If they have it they will probably give it to you. However, if you are in a big fight with your neighbor (adversaries) then you would unlikely expect him to give you the cup of sugar, and then, you may have to take him to court to give you the cup of sugar that was already yours!

[FrankieG23]

The advise here is priceless. It's sooo nice to talk to people who have "been there done that". I'm thinking 1st course is to file appeal and contact NVLSP, the R/O denied based on not seeing anything in previous records mentioning the IHD, prior to 2003 when it was claim for and approved. But I know they had evidence of it back to 2001 when husband first started with DMII/hypertension claim. Husband's C & P even stated a condition (fourth heart sound could be heard by examiner) which one of the conditions causing this is IHD or cardiomiopathy. Cue doesn't sound like it would be the right course for him. I do feel error was made as this evidence is not listed as evidence gone over for determination on Nehmer. He got his "special K" award (it is reflected in his pay) for next month. No offical letter yet. We shall see.

[john999]

The idea that the VBA is non-adversarial is a cynical joke. The VBA wants to hold onto that government money just as long as possible, and they have every incentive to do it. If your claim is on appeal for ten years and you finally win you get no interest. Your retro is paid with cheaper dollars. Go to half a dozen c&p exams and you will know the system is adversarial. The VA does have an obligation to list all evidence used in a decision and to explain why other evidence was not used. This may not have always been the case, but in cases where certain evidence is so important that it would on its own decide a claim it has to be considered.

[meghp0405]

It's pretty easy really. When a claim is denied it is usually because there is no diagnosis or nexus. Weak documentation at its best, believe me I have had the opportunity to see some of these claims. There are vets that will file a claim because their buddy has the same thing and is receiving a higher %. Then the vet will submit a claim with no medical documentation. The VA then goes out and attempts to locate said documentation, sends the vet a VCAA letter, wont get a response, then VA will deny the claim. Then it becomes VA's fault because they don't know what they are doing. Heard it many times. I'm not an advocate for the VA, it is my responsibility to brief and assist the veteran the best way I can. If I don't know, I have those that I can call to obtain the answer.

The VA changed the way they do their rating decisions last year. Before, they explained why it was denied and what was needed to obtain the next level of %. Now, the RD just states, denied, with a short statement, no diagnosis in STR's.

[jbasser]

I can see an error in the effective date as the condition arose with the MI in 2001.

As far as the rating criteria goes, The secondary to DMII is correct here as it is before the IHD presumptive law and the veterans claim was rated on regulations in place at the time of the rating.

If the VA denied the effective date, is it too late to write a NOD?

J

[FrankieG23]

No J not to late, Ruling came in middle of 2012. On Ebenefits it states appeal is possible. This has nothing to do with higher ratings, but only EED. The denial was because they could not see any earlier diagnosis to grant EED under Nehmer. It stated that VA has rules that it has to check for Nehmer for IHD claim.. However his contention is that of what is listed of the evidence used, there is no mention of what was needed to be looked at as his evidence. Whether it was looked at and not listed as evidence, I don't know. I thought that VA weighed on the side of the Vet. VSO said something about a letter VA has, that states "veteran may have had heart attack". I am just guessing it was information from the ER visit I'm talking about back in 2001. I will have to check further about letter. VSO made comment that "may" doesn't mean it happened. I'm just saying, funny, how he fell apart 18 mos later with evidence of silent heart attack which happened sometime before the placement of defrib heart disease doesn't happen overnight. Guess I need to do like Berta said, is get his C-file and contact NVLSP. Hands were tied for awhile because his was in claim status for 2 yrs, and I thought you shouldn't get C-file during this time. I can see a denial of claim with no evidence, but this is not case. Also just to note, I saw C&P report that hubby was noted as having tinnitus, 2 mos before he became 100%. He was never granted it earlier during the C&P for hearing loss.(which he got SC at 0%) because he never put in for it until now which was granted now. It would not really not have changed pay back then,( he was 70% back then) so I'm not looking for EED, but my thoughts are WOW how many vets have had diagnosis and not added to a claim and probably alot of skipping of NSC's. Keeping my fingers crossed and never giving up.

[jbasser]

You need to get your hands on the medical records during the hospital stay when they thought he had a heart attack and any test they did on him to see any disagnosis. You need to see any tests like Echocardiogram or Cardiac Catherizations. You need these to investigate.

J

[Berta]

Jbasser is RIGHT!!!!!!!

My husband had a heart attack while employed by VA in 1988.

They told him he had a sinus infection and gave him sudafed.He drove home and was in a daze for 3 days. His VA boss called here about 10 times to get him back to work.

The med recs, however , revealed this had been a heart attack and they knew it.

Nehmer gave me Oct 1988 but I quibbled about Aug 1988, the actual Med cert date from the VA ER.

The documentation VA needs on EED (explained I think in the Nehmer Fast letter here is medical entries and/or test results etc, and what Jbasser mentioned..

I had the Aug 1988 EKG results.

Is there any entry for nitro and /or aspirin on date of what you believe the EED should be? There must be some signicant documentation in the med recs.

Is there any med entry for nitro and /or aspirin on date of what you feel was the actual EED?

NVLSP Nehmer contact info is here:

http://www.nvlsp.org/Information/ArticleLibrary/AgentOrange/AO-VAaddsdiseasestoAOlist.htm

Edited January 15, 2013 by Berta (see edit history)

[FrankieG23]

Im attempting to get records, I think I will try insurance co. to see what is on bill from that day, hospital didn't see anything in their records, as the ER was done on paper back then.. I seem to remember they did give him nitro, I will ask him. I know I called all his family and told them what drs had said that he may have had heart attack. I know for sure that he heart enzymes were elevated. He stayed overnight, but he wanted to go home next day. He was very confused, sweating, and had chest pain. I know I have records on all this, but I have so many papers to go thru.

[Berta]

"sweating"

When I finally my my husband's med recs ,6 years after that ER sinus diagnosis, one word caused me to file FTCA wrongful death case.

The word was "diaphoretic".

He said he started sweating so bad before he collapsed that his VA co workers looked at him horrified.

Profuse seating can indicate CAD. The heart enzymes and other blood chem work results could support the EED,if this was in fact an ischemic event.

[FrankieG23]

Thanks Berta, I am sorry for what your hubby had to go thru. I am glad you mention the nitro pills, this would show on a bill. I never thought about nitro. I have looked up fourth heart sound, and one of the indicators is IHD, but on page 2 of C & P exam it states "no heart disease", yet they didn't do any further testing during C & P exam from 2001. So I believe it will be important for ER visit records. He had just wanted to go home, he was feeling a little better.

[Berta]

It could have been a mild ischemic event that was a predecessor to the full blown IHD.

I had to read my husband's med recs many many times.It pays to use google for some of the medical terms. The internet was so limited when I reviewed the medical documentation. and the VA med consult notes were all handwritten in those days.

I am sure they did an EKG. Then again maybe not.

[broncovet]

You have been given great advice. Go over your medical records. If you are disputing a decision within a year, then dont file a CUE, file a NOD instead. If you are disputing an earlier unappealed decision (more than a year ago), then you may have to file a CUE. If you did file a NOD and if you disputed the issue at hand and the DRO-BVA did not adjuticate the issue you disputed, then you may have to file a CUE. Fortunately, the Va is required to consider all evidence, and if your NOD disputed an issue, and then it was never adjuticated, you probably have a "pending claim" and wont have to file a CUE. Just simply remind them: I disputed this issue in my NOD dated 11-13-2005, but it was not adjuticated in the BVA decision of 1-17 2009.

You can even submit new evidence, anytime, to a "pending claim". You/your lawyer may have to argue that the unadjuticated claim at issue was NOT "deemed denied", because there is no way you would have known it to be denied.