Cue Question

[abhusal]

Hello everybody!

My VARO recently changed. I would like to file a CUE claim for the earlier VARO decision. In this case where to file a claim, on new one or the original one who made decision? Can I file use E-Benefitis to file it?

Your suggestion please.

Thanks

[Berta]

You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision.

I seem to understand some of the treatment records were from a private doctor.....

A CUE is like the Watergate question:

What did they know and when did they know it....

Did the VA have ALL of your private medical records when they made that older decision?

Or were the records you posted here from the VA or a private doctor?

But it does seem to me that your statement here is correct.:

"They did not look at my entire VA medical records

“Treatment records, VAMC, Baltimore, from December 29, 2009 through April 29, 2011.”

This is wrong. VA failed to look at the Treatment records, VAMC, Baltimore, from May 01, 2009, which I clearly stated on claim application."

If I were you I would file the CUE above and list and enclose all of these records listed , as evidence for the CUE claim.

When I list evidence enclosed for anything I use legal Exhibit stickers or yard sale stickers ...anything that I can identify the evidence with on a list that I always add to my submission, with a brief description of each piece of evidence.

I have been victimized by VA's failure to hold to 38 CFR, 4.6 many times over the past 20 years so I make sure I cover myself , particularly for my CUE claims.,by identifying my evidence enclosed and by sending everything to the via Priority mail with a tracking slip showing they got it.

I also use name and address stickers on every page I send to them and also put my C file number on each page.

It is not medical evidence that awards a CUE claim...it is the fact that they had the medical evidence but their interpretation of it was legally incorrect.

The SOC itself isn't really a legal document, but can often lead to a legal argument.

It is usually in my opinion, the Rating sheet that reveals where the legal Issue occurs.That is where they use 38 CFR,USC and M21-1MR.

38 USC 5107 requires evidence 'in VA's possession' at time of alleged CUE.......and .can mean many types of evidence that may not be in the med rec files at all.

In my past SMC CUE some evidence was still at the Office of General COunsel VA, but perhaps was not with the RO when I Cued a 1998 decision.

But It was still in VA's possession.

Something for my pending CUE was never submitted to my VARO, but it was a letter to my husband from a former Secretary for the VBA.

It was therefore in VA's possession at time of the alleged CUE,regardless of where ,at VA, it actually came from .

My husbands VA Voc Rehav records were hard to find, I dont think I ever found them, but I referred to them as evidence for some of my claims because I knew they were "in VA's possession" even though I didnt have them.

If the VA denies the CUE ( and that decision might contain another legal error), you could get an IMO maybe from your private sinus doctor, and re-open the claim with it. If it complies with our IMO criteria here and you succeed that way, then you can file another CUE on the older decision, using the new award, to seek more retro.

CUE is not a one shot deal.

The BVA denies many CUEs without prejudice.I read a lot of BVA CUE claims and can see why they deny many of them.

That means( without prejudice) that , if the CUE is re- filed and shaped differently, it might succeed.

As someone here said a few times, there is more than one way to skin a cat. I love cats but I fully agree with their point regarding VA claims issues.

[abhusal]

You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision.

I seem to understand some of the treatment records were from a private doctor.....

A CUE is like the Watergate question:

What did they know and when did they know it....

Did the VA have ALL of your private medical records when they made that older decision?

Or were the records you posted here from the VA or a private doctor?

But it does seem to me that your statement here is correct.:

"They did not look at my entire VA medical records

“Treatment records, VAMC, Baltimore, from December 29, 2009 through April 29, 2011.”

This is wrong. VA failed to look at the Treatment records, VAMC, Baltimore, from May 01, 2009, which I clearly stated on claim application."

If I were you I would file the CUE above and list and enclose all of these records listed , as evidence for the CUE claim.

When I list evidence enclosed for anything I use legal Exhibit stickers or yard sale stickers ...anything that I can identify the evidence with on a list that I always add to my submission, with a brief description of each piece of evidence.

I have been victimized by VA's failure to hold to 38 CFR, 4.6 many times over the past 20 years so I make sure I cover myself , particularly for my CUE claims.,by identifying my evidence enclosed and by sending everything to the via Priority mail with a tracking slip showing they got it.

I also use name and address stickers on every page I send to them and also put my C file number on each page.

It is not medical evidence that awards a CUE claim...it is the fact that they had the medical evidence but their interpretation of it was legally incorrect.

The SOC itself isn't really a legal document, but can often lead to a legal argument.

It is usually in my opinion, the Rating sheet that reveals where the legal Issue occurs.That is where they use 38 CFR,USC and M21-1MR.

38 USC 5107 requires evidence 'in VA's possession' at time of alleged CUE.......and .can mean many types of evidence that may not be in the med rec files at all.

In my past SMC CUE some evidence was still at the Office of General COunsel VA, but perhaps was not with the RO when I Cued a 1998 decision.

But It was still in VA's possession.

Something for my pending CUE was never submitted to my VARO, but it was a letter to my husband from a former Secretary for the VBA.

It was therefore in VA's possession at time of the alleged CUE,regardless of where ,at VA, it actually came from .

My husbands VA Voc Rehav records were hard to find, I dont think I ever found them, but I referred to them as evidence for some of my claims because I knew they were "in VA's possession" even though I didnt have them.

If the VA denies the CUE ( and that decision might contain another legal error), you could get an IMO maybe from your private sinus doctor, and re-open the claim with it. If it complies with our IMO criteria here and you succeed that way, then you can file another CUE on the older decision, using the new award, to seek more retro.

CUE is not a one shot deal.

The BVA denies many CUEs without prejudice.I read a lot of BVA CUE claims and can see why they deny many of them.

That means( without prejudice) that , if the CUE is re- filed and shaped differently, it might succeed.

As someone here said a few times, there is more than one way to skin a cat. I love cats but I fully agree with their point regarding VA claims issues.

Berta, Thank you very much again

"You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision."

VA proved by themselves on 2011 saying: A review of your private treatment records does indicate that there is evidence during active duty of chronic sinusitis with continued treatment after discharge from service. The examiner reported that your sinusitis is the same condition which was present during active duty.

And they granted 0% on 2011

"I seem to understand some of the treatment records were from a private doctor....."

Is VA medical records also called private treatment record? All my Dr. visits were at VA Hospital, so I don't have any medical records outside VA hospital.

"Did the VA have ALL of your private medical records when they made that older decision?"

Older calim was processed by Benefits Delivery at Discharge (BDD) unit which was denied on October 10, 2008. Having said that decision is soley based on service medical records which are:

2006 (4 DR. VISITS / 1 TIME ANTIBIOTIC PRESCRIBED)

01/14: sinus headache pressure behind eyes, stopped up nose (hard to breathe), Headache pain constant and sharp

Antibiotic Prescribed? YES/10 DAYS

09/05: throat, nose and eyes burning, headache, mild body ache, dry mouth, nasal and throat congestion

09/09: sinus pressure headache, body ache, nose and whole face burning

09/12: Presents to TMC with c/c of meds not working after 9 days of sinus pressure

2007 (5 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

02/17: sore throat, nasal congestion and lethargy x 3 days

Antibiotic Prescribed? YES/7 DAYS

04/23: Chills at night, eyes are burning, lightheaded and nasal congested for past week

Antibiotic Prescribed? YES/8 DAYS

08/09: Problem started as runny nose, sneezing a lot, and chills, sinus pain/pressure

Antibiotic Prescribed? YES/7 DAYS

11/29: Nasal discharge; Post nasal drip; Sneezing; Throat Pain

12/14: Sinus pain; Nasal discharge mucinous; Nasal passage blockage increased; Cough

Antibiotic Prescribed? YES/7 DAYS

2008 (2 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

02/25: Sinus pressure, Headache, Body ache, Cold

Antibiotic Prescribed? YES/10 DAYS

06/17: Fever and chills; Headache and sinus pain; Itching of the eyes and eyes watering; Earache, nasal discharge watery, mucinous, nasal passage blockage, sneezing, and sore throat; Myalgia

Antibiotic Prescribed? YES/5 DAYS

Edited August 21, 2014 by abhusal