Cue On Original Claim

[NavyWife]

Hubby has 4 denials all for exactly the same thing.

If he wins a cue claim on his first, original decision- would he get backpay all the way back to that first decision?

Edited May 4, 2014 by NavyWife

[NavyWife]

Here's the full history if this helps...

4 Rating Decisions:

1st Decision. 2/1991. Original claim to begin VA benefits after being medically discharged from the Navy at 40%. The decision was a REDUCTION of the 40% the Navy evaluated him at down to 20%. The Evidence listed was: STRs. VA said STRs do not show any new seizure activity since release from service 5 months prior. I believe this is a Due Process violation because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced. .Also, no C&P was ordered.

2nd Decision. 3/1996. This decision was denied increase request. I couldn't find any CUE in this decision.

3rd Decision. 8/1996. The decision was denied increase request. The Evidence listed was: "Negative Report from xxxxx Medical Center. Reasons and Bases stated: xxxx Medical Center informed us you have no record of treatment at their facility. Without any evidence, no increase is warranted." The truth is he was seen many times at this medical facility and prescribed medication. I requested his records from NPRC for those dates and had no problem receiving those records & those records had evidence that would support a 40% rating! I believe this would be a CUE due to evidence being available that was not before the board.

4th Decision. 11/97. This decision was denied increase request. The Evidence listed was: VA treatment notes and VA examination report. The C&P exam from 4 months prior noted a frequency that would garner a 100% rating. The VA treatment note was from 7 months prior and noted a frequency that would garner a 20% rating. They ignored the most recent evidence from a full exam and opted to use one sentence pulled from an old treatment note.

I don't know what would constitute a CUE in this decision. Possibly because in the Reasons and Bases section they violated 38 USCS 7104 (d)---did not give Reasons and Bases WHY it rejected favorable medical opinions. They did not do that. They only restated the evidence....

"(d) Each decision of the Board shall include—

(1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record."

Edited May 4, 2014 by NavyWife

[Berta]

Geeezzz I forgot to make one other main point.

Navywife's husband had established medical evidence warranting the 40% at the time of the decision being CUed....

"established" with no medical evidence to the contrary ....because the VA failed to give him a C & P exam.

'No exam by VA was given or offered to determine if in fact there had been any new seizure activity."

"The original rating decision then reduced him to 20% beginning November 1990, based on the sole evidence of Service Treatment Records (STRs) and no new seizure activity noted in the records since the date of discharge. "

And because VA raters are not doctors and cannot make medical assumptions.

[NavyWife]

Wow, Berta! I didn't even think of that!!!

Now that I read the whole timeline of all his denials, I didn't even realize that in his last decision in 1997, the C&P exam showed a frequency that would garner a 100% rating. But the VA did not use the evidence from that C&P exam and instead used a single sentence pulled from an old treatment note to decide his rating.

I need all the help from hadit members though, because I don't know enough about the various regulations.

Edited May 5, 2014 by NavyWife

[Berta]

What I am reading here today Navywife , is a little different ,as to the whole picture.

It is very difficult sometimes ,in hyperspace, to communicate all the legal issues that many claims involve.

And as an Advocate I have only seen a few CUE claims here over the years where the claimant spelled it out on line here with the actual decision, so that it was suddenly a very obvious and sometimes very easy CUE.

There are a few CUE claims here but many in the pre 2005 boards,so easy, that I wrote the claim for the vet here on line or in emails.

But my time is too limited for that anymore.

If we see the actual decisions a we can help more.

If they are BVA decisions, we can read them at the BVA if we have the citation and docket numbers and no need to post a BVA decision here..

You are laying it out well however but I have a question.....

When you are saying the board (Board) , do you mean the BVA had made past denials on this claim?

CUEs filed on BVA decisions are different in some respects that RO CUEs.

I am not sure at all, at this point, even what decision you should consider filing CUE on.



Can you tell us what diagnostic code they used in the past decisions for the disability?

You have rating info that you compared to his evidence.

Did you check the diagnostic codes they used in the denials to see if they were accurate?

These are some past posts here about that:







In this post I mentioned NVLSP.

They have a wealth on CUE information in every edition of the VBM.
(Veterans Benefits Manual.)

I have purchased the VBM since 1991. They might have somewhat reduced price at Amazon.com.for older copies.

The CUE criteria hasn't changed.

Without all those years of the VBM ,I wouldn't have had a clue on CUE.

Do you know anyone who has a copy of this manual? I think in 1993 they started to expand on CUE issues.

I am not allowed to copy much of their VBM manual here due to their copywrite law.

I did however send the RO a brief printout of the SMC mandate from the VBM to help win my last CUE claim.
The first CUE statement I filed was that VA had violated this statutory mandate.

I sent the mandate, copied from the VBM ,because the VA tried to tell me my accrued claim was denied for SMC because my husband had not asked for SMC (one completely bogus reason for denial...vets dont have to ask for it) I sent them that part of their M21-1MR regs to combat that VA crock of s--t.).

and also they said in some other crap they sent to me that he was Not eligible for SMC consideration in any respect.

My response was 'please advise me with citations from 38 CFR, as to what VA regulation contains a specific exception for one sole American veteran,named Rodney Simmons, as to his being ineligible for application of the SMC mandate." Of course there is no regulation.

And then reminded them that the decision I cued clearly shows 100% P & T for SC PTSD and 80% for a Section 1151 stroke.

Although the 80% and their diagnostic codes , was cued too, SMC awards for independent disabilities,over 60% plus 100% for an additional SC disability, equals SMC.

That includes Section 1151 "as if SC " disabilties.

If a CUE claim does not clearly define the actual legal errors ( such as wrong diagnostic codes) that ,due to being wrong, manifested an altered outcome, they are not a valid CUE attack.

But the legal errors take time to recognize.

There is no time limit on filing CUE and I studied the regs, the VBM, and many CUE claims at the BVA before I filed the one I mentioned above and other CUEs I filed.

Any vet rep on the ball should be able to recognize a valid CUE in a past decision too..

And VA raters sure can see right away if a valid CUE has been filed that could possibly garner a large retro. That is why the VA plays around with CUEs if they think they wont be challenged,if they deny the CUE,in my opinion.

(They often seem unable to read but ,in that respect, they do seem able to add and multiple)

That is surely why my CUE of 2012, that was with a VA specialist months ago, is suddenly missing and "Gone", as the 800 vet told me last week.

(I guess The MF is back...MF- mysterious force employed by VA to remove probative and critical documents from C files. The MF however did put my past missing or lost evidence back in my C file, AFTER I succeeded in many of my past claims.

The info here in our CUE forum is very extensive.

And other CUErinos here will chime in to this thread I am sure.....

As the BVA has defined CUE in many decisions, a CUE claim is a frontal attack on a past unappealed decision.

As a civilian I enrolled into and graduated from a Military School a few years ago because all of my claims seemed to end up needing frontal attacks.

It often takes a very disciplined approach ,I didn't have ,since I am not a vet, to not only defining our issues for a CUE claim, but keeping our paperwork in good order ,having copies of the same med recs, and C file that VA used for the older denials, copies of the actual C & Ps, preventing interruptions when you do this, and then reading it all,to include the appropriate regs that are controlling the decision, putting it away for a day or so ,and then reading it all again...and again....and again........

That goes for any type of claim as well sometimes.



.

Edited May 5, 2014 by Berta

[john999]

Yes, I would really study the concept of CUE because when you go back in time to try and revise a final decision the burden of proof is on you. No benefit of doubt, no duty to assist etc. If you have a good CUE the VA may just deny it anyway because they don't want to take the hit. They can always pass it off to the BVA or CAVC to decide it. However, once you file your CUE, and if it gets denied then you can get a lawyer to represent you if it has merit in their eyes. The lawyers that are good know all the arguments to make and the ones to avoid. The assumption with a CUE is that the VA did everything right, and you must prove they made an error that would have changed the outcome of the rating decision. AskNod really is speaking the truth when he says the error must be so glaring that you can see it from the moon. If you have less than 100% now I would concentrate on getting 100% and then file the CUE. It took me 7 years to get my CUE from the VARO where it happened to the CAVC where it was denied. I am not done yet and still want to fight it if my lawyer will go forward.

I don't want to discourage you. I am pretty bitter about losing my CUE after so many years. I thought my error could be seen from the moon, but VA loopholes let the VA drive a tank through my lawyer's efforts. They should have known better, but it is what it is. When VA says a CUE is a rare type of error they make sure it is rare.

John

[NavyWife]

Berta--

Thanks very much for taking your time to help me out. I know you are very busy!

I will try to answer your questions to make things clearer for everyone.

All 4 of his decisions were made at the VARO. I guess I used the wrong word when I said "before the board".

The rating code they used is correct. That is what he was diagnosed with and we are not disputing that.

I have purchased the Veterans Benefits Manual latest edition and read their CUE section. However, I still have many questions on specifics.

I have acquired a complete copy of his C-file, so I know everything that is in there and when the date stamps show it was in there.

You are sure right about reading it all and then rereading it! Things jump out at me that I read before and now have new meaning.

Here is the exact wording from his original decision on 2/91:

The evidence we considered in making this decision was:

Service medical records.

The reasons for our decision are:

The TDRL evaluation of 40% was based on a major seizure within

the past 6 months (on April 6, 1990).

Since there has, as of February 1991, been no seizure in the

past 6 months, the evaluation as of October 7, 1990 is 20%

　

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Here is the rating schedule for this:

At least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly 40

At least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months 20

　

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TDRL= Temporary Disability Retired List

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Keep in mind that they are saying the evidence used was his SMRs aka STRs, however, August 31st, 1990 was his last official day in service. Any reasonable person would realize, new records are NOT added to the SMRs once a vet leaves service. It seems that VAs reasoning was that only based on the passage of time since he was medically discharged/retired by the Navy, they could reduce his rating of 40%. If that is not a CUE then I clearly don't understand what a CUE is. Hubby says I am wasting my time pursuing this, because he says VA would never admit they were wrong...

　

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Edited May 5, 2014 by NavyWife