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StreetWalker

Could This Be A Possible Cue?

Question

I was denied TDIU recently. One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent.

Been doing some legwork and research and here's what I have come up with.

I have obtained a copy of my SSA-831-C3 which is the Disability determination and transmittal.

In section 17 I have the following codes. Diary type - MRP, mo/yr - 07/2019, reason 7.

According to https://secure.ssa.g.../lnx/0426510020 these codes show that I'm "Medical Improvement Not Expected".

This directly conflicts the wording in my TDIU denial. Does this make the cut for a CUE?

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No. How the evidence is weighed is not a legal error or cue.

You may have to NOD this one, reconsider , DRo or even BVA.

J

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I disagree....if this decision is still under a year old ,if so I would ask them to call a CUE on the decision because they have committed legal error under 38 CFR 4.3, and 4.6 which I have posted here ad finitum......and you can use my Go CUE Yourself VA template here somewhere too.

"Been doing some legwork and research and here's what I have come up with.

I have obtained a copy of my SSA-831-C3 which is the Disability determination and transmittal.

In section 17 I have the following codes. Diary type - MRP, mo/yr - 07/2019, reason 7.

According to https://secure.ssa.g.../lnx/0426510020 these codes show that I'm "Medical Improvement Not Expected".

GOOD FOR YOU!!!!!!

Doing some research and leg work, as a claimant, can make the difference between a lengthy ordeal with VA and an actual proer award.

Tell them they violated 38 CFR 4.3 and 4.6 by their failure to read the SSDI information correctly and thus they manifestedly altered the outcome of your TDIU claim to your detriment.

Others will disagree with me for sure here, and you could ask for a Reconsideration instead of asking them to CUE themselves, but watch the NOD deadline for that if you request reconsideration.

"One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent."

It is not required by VA that almost any disability be "permanent"...if that was the case, we could all be in the crapper.

Vets here have to fight for P & T sometimes.

I posted a l;ink here recently to exactly how VA determines TDIU from M21-1MR.I used M21-1MR printouts to win my SMC CUE and the Request that they CUE themselves that I filed.

I cannot ever recall ever seeing a statement like what they said to you, to deny any vet TDIU.

I commend you for checking those SSA regulations and codes.

Doing that m,yself helped my husband win a reconsideration with SSA. They had awarded for a NSC (1151 stroke) but failed to even consider his PTSD records.

Within months of filing the reconsideration,that a SSA lawyer would not help with, and with medical evidence and a copy of the actual SSA regulation tat SSA had broken, they awarded my husband solely for PTSD with a very favorable EED. We whippeed that SSA award right off to the RO but it took them

4 more years to use the SSA award and make a 100% P & T PTSD award. My husband had been dead for 3 years by then.

I should have asked them to CUE themselves on that claim too.The lawyers fee would have been 25% of the SSDI retro.I called the lawyer up to tell him how he had lost 4500 bucks.

He was surprised we won and told me he would never make that mistake again and wished he had paid more attention to the evidence I had when we met. He had said my husband would Never get SS to reconsider the Stroke award.

Never ???? Negatives make me fight harder.

He also said he would start looking at these PTSD SSA claims differently. I wonder how many PTSD vets SSA claims he might have messed up.

Permanence is a medical determination.

What medical doctor did VA refer to and quote ,to support that your disability was not permanent in the decision?

The C & P doctor?

SSDI determinations are in essence Independent Medical Opinions.

Whatever you do, make sure the VA has copies of the info you found as to the SSDI designation of the permanency of your disability.

You can push this point with them and I eel should sonner than later....However I am concerned that you said it was "One" of the reasons they denied TDIU.

What were the other reasons?

Edited by Berta

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Here it is:

Here is NVLSPs explanation of how TDIU is determined, in the Purple Heart Training manual

http://www.purpleheart.org/ServiceProgram/Training2011/W-4%20TDIU.pdf

Here is the exact way in M21-1mR that VA is to determine TDIU

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CEAQFjAC&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch02%2FM21-1MRIV_ii_2_secF.doc&ei=P3dDUd7LAZGA2AXK0oDwAw&usg=AFQjCNFmeGPdrTzYzXbz0XLQlN_kUwGdFw&bvm=bv.43828540,d.b2I

It is under Part 25.

I believe the VA committed a CUE under 4.3.,4.6 38 CFR as well as under M21-1MR, Part 4, Chapter II Sec F , under Part 25.

If you dont wish to ask them to CUE themselves , this can help bolster a reconsideration request.

I suggest that you direct any response you make as Attention to :and use the numeric and initials to the right hand side of the decision over the date.

This way it might still be on a or near the desk of whoever wrote this decision and they will get it right away.

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Permanence is a medical determination.

What medical doctor did VA refer to and quote ,to support that your disability was not permanent in the decision?

The C & P doctor?

SSDI determinations are in essence Independent Medical Opinions.

Whatever you do, make sure the VA has copies of the info you found as to the SSDI designation of the permanency of your disability.

You can push this point with them and I eel should sonner than later....However I am concerned that you said it was "One" of the reasons they denied TDIU.

What were the other reasons?

There was no reference to ANY doctor stating whether or not my conditions are permanent. In the award letter it referenced my SSDI award and the fact that I'm scheduled for a reevaluation.

Here's the complete paragraph.

Entitlement to individual unemployability:

Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.
Although your records from the Social Security Administration (SSA) indicate you are currently receiving social security disability for your back and other osteoarthritic conditions, the SSA records note your disabilities are subject to reevaluation and as such considered not permanent in nature. Based on the evidence received from your VA examinations, the examiner opined that you are capable of sustaining and gaining employment in a sedentary environment that does not involve lifting, squatting, bending or frequent twisting movements. We have considered the following evidence for this decision:

The C&P examiner is a contract doctor that I've had problems with before. She did not complete my lumbar exam. If you're familiar with the DBQ for spine exam she basically stopped in the middle of section 8a with the knee. She did not test the ankles or great toes. She notes that there is loss of of strength in the left knee but that the ankle and great toe are 5/5. I obtained a copy of the C&P exam shortly after it was done. I then wrote a statement to the effect that the exam was incomplete and requested a new exam with a different doctor. That letter was ignored by the RO. After over 100 phone calls I finally found a doctor willing to do the exam and fill out the DBQ for me. My VA PCP is also going to fill out a spine DBQ next month. I'm hoping that these two DBQs properly filled out along with pointing out the error on the SSDI issue will suffice to have them reverse their decision.

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Berta is the best of the best, and I recommend taking her advice above mine. This being said, I see many Vets who "holler CUE" when a simple NOD, if you are in the appeal period, "lowers the bar".

Please let me explain.
CUE is a "standard of revue". When you allege CUE, you "raise the bar" making it higher to "jump over". A CUE standard of review is higher than a conventional NOD in at least one way: BOD (Benefit of the doubt) goes out the window with CUE. The CUE standard of revue is an "undebatable" standard, far higher to achieve for the Veteran than

the "easy" BOD.

Taking all this into account, I would STILL defer to Berta's advice, based purely on practicality. The fact is that Berta has won, or advised other Vets who won by asking the VA to CUE themselves. It works..even tho logic says it should not work. Then again, pretty much NO ONE has ever rightly accused the VA of doing something logical or that makes sense. Time and time again, the VA does stuff that defies logic. But, as someone said..its the only game in town.

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