hypertension Do I Have A Cue?

[dav_marine72]

Hey Everyone,

So here is the deal. I was service connected for high blood pressure secondary to my service connected back, I.E. pain with an effective date of 2002. I was given an initial rating of 0%. So I appealed in 2004 (When they actually SC me) asking for 10% and that was denied.

They did a ssoc in 2005 which included denying many issues outside of this issue including the HBP. I received a normal do you want to appeal document after the ssoc which is attached. I stated I was not satisfied with any of their decisions. After that I thought everything went to the BVA. I even went in the RO and asked. I was told yes all your appeals are currently at the BVA. Then I noticed in the BVA 2008 decision it stated the following:

"Additionally, a December
2007 communication raises claims of entitlement to an earlier
effective date with respect to grants of service connection
for hypertension and for a back disability and entitlement to
an increased rating for service-connected eczema. Such
claims have not yet been adjudicated by the RO, and are
therefore referred back for appropriate action. "

So I assume I am good. Then the RO's 2009 decision denied me again for 10%. By the time it went back through the BVA, down to the U.S. Court and back to the BVA they finally gave me 10% for HBP. Here is the kicker. They said that I had not appealed their 2005 decision and the appeal was up in 2006 so my increased rating date was in 2008 when they took my asking for a status as an increased rating submission. Now I wanted to fight this all the way. I looked at it as hey whether or not they are saying these aliments went to the BVA or not in 2008 they clearly said it was not fully adjudicated by the RO. I told my attorney this many times. She dropped the ball hence why she is not my attorney anymore. Sorry for the long story but the question still remains is this a CUE based on the following:

Even though they are saying I didn't appeal properly and only went back to an effective date of 2008 for the increase, the evidence they used was from 2002 which was in their possession the whole time. Does this mean I should have been rated 10% from 2002 the original SC date because they had the evidence in their possession or am I just done because they are saying I didn't appeal like I thought I did?

BVA Decision 2008 http://www.va.gov/vetapp08/Files1/0808584.txt

BVA Decision 2012 http://www.va.gov/vetapp12/Files2/1211408.txt

Thanks.

Mike

HBP_Apeal_2005.pdf

Letter to BVA-3-3-06.pdf

2006.pdf

Edited April 7, 2014 by dav_marine72

[Berta]

"Here is the kicker. They said that I had not appealed their 2005 decision and the appeal was up in 2006 so my increased rating date was in 2008 when they took my asking for a status as an increased rating submission. "for a status as an increased rating submission. "

The BVA 2-012 decision states:
"A 10 percent rating, but no more, is granted for hypertension, subject to the law and regulations governing the payment of monetary awards.:

I dont understand what the BVA means here:
"A September 2009 rating decision denied entitlement to increased (compensable) ratings for hypertension and eczema; these issues do not involve initial ratings despite the assertions of the Veteran."

In part, the HBP narrative says:

"These records indicate that the Veteran had a diastolic blood pressure of predominantly 100 or more and that he required medication to control his hypertension. VA treatment records dated from 2002 to the present show that he has required continuous medication to control hypertension. The evidence of record reveals that he meets the criteria of the assignment of a 10 percent rating by having a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. Accordingly a 10 percent rating for hypertension is warranted.

The preponderance of the evidence is against the claim for a rating in excess of 10 percent. Simply put, the medical evidence of record does not reveal that, from the effective date of service connection to the present, the Veteran has ever had diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more.



http://www.va.gov/vetapp12/Files2/1211408.txt

If the VA had documented medical evidence in 2002, that your HBP should have been found at a ratable level, then I would think this would be a valid CUE issue.

"VA treatment records dated from 2002 to the present show that he has required continuous medication to control hypertension. "

But this is the BVA's 'kicker', and their rationale for the decision.

"Simply put, the medical evidence of record does not reveal that, from the effective date of service connection to the present, the Veteran has ever had diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. "

By the effective date for service connection here they mean the initial "0" rating.

Can you prove that the documented medical evidence of record revealed anything to combat that statement?

Did they have any private medical records that they did not use?

"Even though they are saying I didn't appeal properly and only went back to an effective date of 2008 for the increase, the evidence they used was from 2002 which was in their possession the whole time."

Who is "they"? The BVA or the RO ?
Can you scan and attach the RO decision that awarded the 10% HBP?

Block out C file, name, address etc.. we only need to see the part about the Reason and Bases and Evidence list regarding the HBP.

Have you filed a timely NOD on that RO decision yet?

CUEs are often like the Watergate question...what did the VA know and when did they know it.

The BVA decision of 2012 notes the voluminous files you have....I know how that is, and it takes to time to go through them all...

You need to get a complete copy of your VA med recs and any private med recs you might have had, that VA should have been told to obtain, to see if there is anything documented in them that has been overlooked and which is probative enough to attempt to file a valid CUE claim.

However, by appealing the EED in the VARO decision, that possibly could get a better result.

I dont see any CUE here at this point, but that doesn't mean one doesn't exist.

Others will chime in. .

It is an odd scenario too......the VARO EED was predicated by the BVA award for HBP at 10%.

So would a CUE be filed against the RO or the BVA in this case? But that is down the road....

If you do find medical evidence (that VA also had) that should have garnered a higher rating in 2002, I say NOD the recent decision ( if you still have time) and if the EED is successfully altered to a better EED, by the RO then I would file a CUE in a heartbeat...but probably as a Motion for CUE against the BVA.... if the EED is still not what you think it should be.

CUEs rests on established documented medical evidence in VA's possession at time of the alleged CUE.

It does not matter where the evidence physically is, as long as it is within the VA.

( I mention that sometimes because some of my documented medical evidence remained at the office of the General Counsel when I filed an additional claim in 2003. I had to battle with the VARO to get it, but when I called the OGC they sent it to the RO in a heartbeat.)

Edited April 7, 2014 by Berta

[john999]

If you were to file a CUE and win how much money in retro would it mean? What would be consequence of CUE win? The fact your lawyer missed a filing deadline is the worst sin. Too bad you can sue her, or can you? After it became legal for lawyers to represent vets at earlier stages many incompetent and untrained lawyers jumped in thinking this would be easy money. When they find out they are in for a long fight they drop the ball and want out.

John

[dav_marine72]

Okay first yes the RO and the BVA had my high blood pressure records from 1997-2002 in their possession the entire time it was on appeal. I used those records to try and get the service connection in the first place. So yes the RO and BVA had in my case file the whole time since 2002 the records they used to prove that I had HBP of /100 or more. Second the date to appeal was missed by my former lawyers. She apologized for the error. Hence why when I fired them last week they gave up any claim to 6 appeals going back to 2000.

What would the 10% do for me if I won? Good question. I was only 50% in 2002. However, I have a good chance at getting back (My actual back) ratings that in 2002 were 20% ortho and 10% neuro for both legs bumped up to hopefully 40% ortho and 10% for each leg. I also have both my feet on appeal back to 2000. My right is 10% and my left is 0% still. My lawyers and I believe based on the evidence I should get 40% combined for the bilateral feet conditions back to 2000. So it's a crap shoot. Could the 10% bump me to the next rating at some point from 2002 to 2006? Maybe. I'm looking at getting 100% scheduler soon because my mental is 50% and should be 70%. Thats on appeal back to 2005. The evidence supports 70% from minimum 2007.

I'm thinking maybe since I have all these other issues and I am fighting them myself maybe I should just let go of the CUE. I also was just awarded my 13th and 14th service connections although I don't know what they were rated at yet. So again like John says maybe it's not worth it. What kills me is the fact the evidence they used was from back from before my initial service and was in their possession. Thanks guys.

You two always respond to my posts and it's much appreciated!

Mike