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!!!

[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