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]

We went through an extensive review and revision process to ensure all medical issues were covered and we also discussed the CUE language. It was clearly written as part of the IME nexus letter and I was not advised to separate the CUE language from the rest of the letter before the final draft was submitted with the claim.

What's done is done and we'll have to wait it out and see how the VA rules.

If Dr. Bash is now advising vets to separate the CUE language, I think that's a good thing. If a client takes the CUE language out in the editing process, I'm sure he 'd be supportive. In my case, I did 't see Asknod's message until the claim had already been filed.

Thanks to all for making this a useful and informative thread.

[Snake Eyes]

I listened to the podcast and now I get what the controversy is -- the assumption that I did not file a CUE claim and was hoping the VA would CUE itself based on the IMO.

I requested CUE on the claim application and included a lay letter explaining why I thought the TDIU should have been inferred. Dr. Bash went beyond simply saying there was a CUE but connected medical conditions that were rated and a financial statement I included in support of the original claim.

[Berta]

Good..... I have had multiple issues and had many CUE claims with VA.

I advise them to be sent in as separate issues because these ROs cant seem to handle too much at one time.

And the BVA has dismissed many CUE claims because the specific regulations they broke were not identified in the CUE claim.

BVA however is quick to state that of the CUE claim is dismissed without prejudice...that means, if the claim is reworded and filed again, to fit the criteria of CUE regulations,the claimant has another chance to file the CUE and succeed.

Such as :

"The general assertions have failed to identify any

specific error(s) of fact or law in the Board's decision or

the legal or factual basis for any such error(s), nor has the

moving party explained why the result would have been

different but for the alleged error. Hence, the motion must

be dismissed without prejudice.

Accordingly, the claim is dismissed rather than denied. See

Luallen, 8 Vet. App. 92, 95 (1995); Sabonis v. Brown, 6 Vet.

App. 426, 430 (1994); see also Simmons v. Principi, 17 Vet.

App. 104, 111-15 (2003) (holding that in asserting CUE, where

the claimant fails simply in the pleading rather than on the

merits, the appropriate decision is to dismiss the claim

without prejudice to refilling rather than to deny). The

Board notes that this disposition is more favorable to the

moving party than a denial on the merits would be, as the

moving party is free at any time to resubmit a CUE motion

with respect to the July 11, 2005 Board decision, since a

dismissal without prejudice under 38 C.F.R. § 20.1404(a) does

not preclude the moving party from filing another CUE motion

to revise the July 2005 Board decision."

http://www.va.gov/vetapp06/Files3/0613204.txt

[Snake Eyes]

CUE regulations shouldn't be a big issue as Dr. Bash did go through the case law and. "Three pronged approach" as part of his medical basis.

As far as number of issues beside the CUE, there was only hypertension, diabetes and diabetes complications (with DBQs for the diabetes stuff and medical documentation for all) and the TDIU application.

That's fewer issues than with the original claim.

I wonder why they have so much trouble with multiple issues when they're carefully laid out with documentation for each along with DBQs and an IME. The whole idea behind FDC claims is that the vet does all the work so all the VA has to do is decide. :-)

[Chuck75]

"there was only hypertension, diabetes and diabetes complications"

For whatever reasons, these are hot buttons for some of the VA RO's.

One of the common problems is under rating DM, and then 0% the complications.

It might be that this helps the RO get a claim through the system. (Pure conjecture!)

Hypertension is usually listed as "essential" by the VA.

The literal meaning is "of itself", and the real one is we don't know what caused it.

The VA likes essential because it gives them an excuse to say that it's not service connected.

[Snake Eyes]

DM has been approved at the appellate level for causes other than Agent Orange. I doubt we'll see a lot of rated examples on initial applications, though.

Hypertension is only 10% in most cases, but I'd be happy just to have it SC at this point.