lumbosacral Cue For Inferred Tdiu Claim?

[Snake Eyes]

I was rated as follows:

70% Generalized Anxiety Disorder

50% Sleep Apnea

10% Lumbosacral

10% Right ankle

90% Combined rating

With my original claim, I submitted a Statement in Support of a Claim which detailed various instances of inappropriate acting out in the workplace. A follow up statement after my C&P clarified a comment I made in an earlier statement submitted with my claim that "I have been unemployed since 2010" -- pointing out that I am working about 20 hours weekly as an independent contractor for an online school.

Working conditions and frequent breaks to lie down for pain relief (something you can do in a work-from-home environment) were described in that statement along with my earnings for the three years I've been doing this -- well below the threshold for marginal employment.

The VA in my award letter did not mention either statement and apparently did not infer a TDIU claim based either on my schedular ratings or the statements I submitted.

QUESTIONS: If I submit a TDIU claim and cite the documents I submitted with the original claim -- and win the TDIU, will my TDIU effective date be the effective date of the original claim?

If the VA is supposed to treat this combination of rating and documents explaining my work environment and earnings over three years as an inferred claim, would this be an example of a CUE worth pursuing?

Edited May 9, 2014 by Snake Eyes

[Snake Eyes]

Hi Berta,

VSO didn't recommend filing the CUE during the NOD period -- it was part of the FDC I brought to him to file -- but he seemed to think it was a good idea. As far as Dr. Bash doing a CUE analysis in his IME/Nexus letter, that was not a stand-alone thing. The text below is part of a lay statement I submitted with the claim pointing out the CUE and unfortunately, if I understand your post above, I failed to specifically ASK for the VA to CUE itself. What do you think?

THIS STATEMENT IS MADE IN SUPPORT OF THE TDIU Claim:

Dr. Craig N. Bash, M.D. identified a "Clear and Unmistakable Error" in his review of my medical records and claims file. The VARO did not infer TDIU for the claim it decided on 1 May, 2014. On 7 April, 2014, my VSO (as Power of Attorney) submitted a Statement in Support of a Claim on my behalf indicating that I was marginally employed. This document was received by the VA BEFORE other documents which were cited in its evidence listing in my decision letter.

In the statement, I described the work I did at the time and the working conditions. This was done in hopes of providing an accurate description of my employment status and recent work history in the event the VARO found I had service-connected ratings that would be eligible for TDIU per 38 C.F.R. 4.16a. Any conflict between the formal statements I made and the notes made by Dr. Xxxxx, a C&P examiner regarding my employment status and earnings should have been resolved in my favor since I have first-hand knowledge of the facts in my statement and they can be verified by Social Security (see attached Social Security earnings statement).

The VA should have taken the Statement in Support of a Claim I submitted showing my income from 2011 through 2013 as an inferred request for TDIU as it showed I was not substantially gainfully employed. The functional limitations described in my mental health C&P examination and in Dr. Yyyyy's Disability Benefits Questionnaire provided at least enough evidence to infer a TDIU claim.

I believe that had the TDIU request been inferred and sympathetically developed, the VARO would have would have found any work beyond 13 to 20 hours weekly was not consistent with substantial gainful employment in a traditional work setting due to functional limitations of my service-connected disabilities; much of the "work" I described in the interview with Dr. Patty and in my 7 April, 2014 statement was inconsequential in nature -- reading, research, viewing tutorials and "thinking" about possible courses I could teach.

It seems to me that the combination of this statement and Dr. Bash's specific statement ("The previous rating contains CUE as follows:..." with his analysis and statement of the law should be a clear request for the VA to either CUE itself or an effort to amend my TDIU claim with a request to consider it a CUE claim.

I'm fairly new to this concept though I've read a lot about it -- learning a lot from YOUR posts. Unfortunately, like many here, my knowledge began to grow AFTER the damage was done :-)

Thanks again for your participation. I may be seeking your advice again if this results in a "Nuh uh!" from the VA.

Edited November 19, 2014 by Snake Eyes

[Berta]

"The text below is part of a lay statement I submitted with the claim pointing out the CUE and unfortunately, if I understand your post above, I failed to specifically ASK for the VA to CUE itself. What do you think?"

That was my point. CUE regards an error of legal specificity.

This is the CUE claim I filed via IRIS.asking them to CUE themselves ..I dont recommend doing that via IRIS.

My service complaint was stronger than this CUE request.

"This is to follow up on my IRIS service complaint dated December 6th,2011.

It is regarding the decision I received yesterday from the Philadelphia VARO re: 310/2POST/MFM,

My C file number is XX XX XXX XXX.

I want the VA to immediately CUE this decision and then do it right.

I personally feel that NVLSP should sanction the VA for the clearly erroneous decision I just received.

The VA broke all evidentiary regulations in 38 USC ,38 CFR as well as those regulations within M21-1MR, and also defied the Nehmer Training letter as prepared by NVLSP."

In the prior IRIS I mentioned their legal error with Great specificity.

I have had some pretty stupid crap from VA for last 20 years but this one took the cake.

They reversed the decision on December 22nd 2011.I got my award letter on January 6th 2012.

Maybe best to review my other Go CUE yourself VA request here at:

I was much nicer to them on writing this one , and it was sent by regular mail (with USPS tracking slip)and this newer GCY claim is still pending.

Edited November 20, 2014 by Berta

[Snake Eyes]

Just curious.... is the "much nicer" one more effective than the "go CUE yourself" one? :-)

Thanks for sharing.

[Berta]

I dont think nice makes a difference to VA....I just have gotten more patient.

I just meant the GCY claim in the link was nicer than my last CUE claims. One I wrote was entitled to IRIS in 2005, "What the Hell is THIS!"

That got me an immediate DRO review but the DRO still didnt know how to read.

( my rep actually said she said that to him...that she could not read my IMOs....I really wonder if he even gave them to her as they again were ignored in the SSOC. The BVA awarded that claim.

I posted the award here in 2009

In part it states:.

"

The claimant perfected her appeal with regard to service

connection for the cause of death by filing correspondence

accepted in lieu of a VA Form 9, Appeal to Board of Veterans'

Appeals, in January 2006. Although this was outside the one

year period from the February 2004 denial, and beyond the 60

day period from issuance of a statement of the case (SOC) in

September 2005, the claimant submitted or caused to be

created additional evidence requiring the issuance of a

supplemental statement of the case (SSOC) in December 2005;

therefore, the time for perfection of the appeal was

extended. 38 C.F.R. § 20.302(b)(2) (2008)."

What all that legalize means is Yes I was outside the one year period, but I had asked them to CUE themselves within the year appeal period, (caused to be created part in BVA legalize) and that is how BVA accounted for the GCY part.

CONCLUSION OF LAW

Resolving reasonable doubt in the appellant's favor, the

criteria for service connection for the cause of the

Veteran's death are met. 38 U.S.C.A. §§ 1310, 5107 (West

2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2008)."

Sometimes I cant believe the crap they have put me through.

[FormerMember]

Just my unsolicited opinion, but never let a doctor, especially the one providing your nexus letter, opine on the legality or judicial posture of your claim. I really do not care if he is a registered VA attorney. There becomes a time when the VA perceives his investment in the claim is too tainted financially rather than an independent medical opinion. You do see my meaning, I hope. Your claim hinges on his nexus letter which is supposed to be supported by his knowledge of medical matters. When he inveighs on the CUE, or what he perceives to be CUE, with no juris doctorate after his name, it becomes polluted. VA can say he is too heavily invested in the outcome to be objective. Even if he has the JD, if he is not representing you, it also becomes a conflict of interest as to who is driving the claim boat. Never blur that line if you can avoid it.

a

[Snake Eyes]

Interesting perspective. Dr. Bash has done these before and I'm sure if he had blowback, he would have simply provided the language and advised me submit the CUE separately. If we get the response Content Contributor expects, I'll be sure to post it here -- along with the VA's explanation -- as a teaching point for others.

Thanks for your insight.