Cue

[john999]

I say again, would it do my CUE any good to have my doctor who orignially treated me and sent in evidence to the VA review what he wrote and comment on it for the CUE. His opinion and the VA's opinion were light years apart and the VA misquoted his disangosis into something else.

[Berta]

John-the tricky thing about CUES are that they are legal errors and have to be shaped as a legal error even if the diagnosis was wrong.

"VA misquoted his disangosis into something else." In the rating decisions that you have filed CUE on-if this appears as the wrong diagnostic code and thus, prevented you from a higher rating, because the code was wrong- or the % assigned was wrong-the doctor's statement might help----still it boils down to this-

CUE is not a Duty to Assist scenario. That leaves everything else in M21-1.

When the VA rates a veteran that is when a CUE can occur.

I posted many CUE claims here as examples.

The problem with the search feature is that it cannot search for CUE- needs more letters in the word to search.

The VBM has excellent advice on CUES and also some very good examples.

In my CUE- the veteran's diagnostic codes were all wrong.They even missed the fact that Rod had PN and also loss of use of all extremities. He had a brain stem stroke on right cerebral hemisphere at home- but the VA misdiagnosed this for 3 weeks and he suffered left side brain strokes too while laying in the VAMC getting numerous wrong diagnoses.

These 1151 disabilities (Sec 1151 award granted them as negligence)came to 100% under Sec 1151.They committed CUE by failing to consider him for SMC (Legal error) as he was 100% SC for PTSD also and then by failing to properly assess the proper diagnostic codes.(legal error)

His heart disease is a separate CUE. They never diagnosed him with heart disease. I did in 1995 and the VA agreed.

His heart disease was evident since 1988 in VA medical records. I proved that he had a heart attack while working for the VA and I proved the second heart attack that killed him was due to misdiagnosis and VA's fault due to negligence. Heart disease =under Sec 1151. Never rated.

The VA must rate every disability the veteran has.

They have never rated the veteran's significant heart disease. That is the second CUE because it is legal error.

I used regs and Office of General Counsel Pres Opinions to support these CUES.

VA case law clearly states that a veteran with a direct SC disability as well as Sec 1151 disabilities is eligible for proper SMC consideration.

This is fact and their denial of SMC was a CUE based on valid VA case law.

They will have to rate the veteran's AO diabetes too-when they award SC death for it.

My point is -these are medical issues but when the VA rater uses VA regs to give a DC and a rating, that is when a CUE can occur.

And it can only occur in a final decision.

And it has to generate more retro due to the legal error.

The minute a rater uses the regs,(except for Duty to Assist) and applies those regs to a claim- this is when a CUE can occur.

It has nothing really to do with C & Ps, or VA medical opinions or anything at all but legal errors.

Another example- The VA committed a legal error in deciding my offset from my lawsuit.

That was a CUE and they rectified it.

Also they committed a legal error in a pension decision they made to me.

Although my DIC was also granted, and the pension became moot they had to correct their legal error in the pension decision and sent me some money.I asked them to CUE themselves twice and they did on erroneous legal decisions.

A claimant should never overlook that ploy.

When I got my sameo sameo De Novo Review I asked the VSM to CUE the decision it generated.I used VA case law and emailed this request to them.

That specific decision became null and void.

If the VA makes a clear and unmistakeable legal error in a decision that you still have appeal time on-you can't CUE it-but you can make them CUE themselves.

In essense, when I squacked over the transfer of my claim to the BVA, I got it back due to the fact that they had violated DTA under VCAA (not a CUE) but they failed to fulfill VA case law in many,many ways-thus they erred clearly and erroneously and ---basically - since they are working on my claims now- it is the same as having them CUE themselves on the past decision that got me at the BVA -illegally.

One thing is for sure- I wanted that remand and got it because I fought for my 38 CFR rights and 38 CFR does work!

If they misapply 38 CFR -but for DTA regs - they have set up a potential CUE.

Edited October 3, 2006 by Berta

[john999]

Berta

It was not so much that there was a misdiagnosis, but that the VA completely disregarded my doctor's statements to the effect that I was unemployable and incapacitated. The VA said that the factor of employability was not an issue. The VA did not even consider the factor of unemployability, and said it did not apply even though my doctor said I was unable to work. It was as if I were in a wheelchair and the VA said I could walk on water. The VA said I was anxious and my doctor said psychosis in partial remission. Those evaluations are not on the same planet. Is there any point in my doctor commenting on this now, or is this just a dead issue that will be looked at again for a second or two and then denied? I am 70% now and my prognosis from my doctor was worse 35 years ago than it is now. I understand it is legal gobblygook so if it fails it fails. I have 30 days to comment on my CUE or they decide(deny). I would be shocked beyond belief if I prevail given what I have read, but what have I lost? It is a decision that was made in 1973.

[jrenee]

Hello everyone,

Hope all are doing well. I recently filed a cue for my migraines headaches which were denied up to 2005. I finally received service disconnect May 2005. Since I have to prove that the VA errored in their original decisoin in 1997 and again in 1999, how do I find the law they applied in 1997 where I was denied and the law they applied in 2005 where I was granted the service disconnection? I also visited my VSO last moth after receiving yet another NOD and she indicated that I can file a lawsuit against my former VSO for not assiting me devlop my initial claim in August 1996. Any feedback you provide will be most helpful.

Best regards,

Renee

[Berta]

"I also visited my VSO last moth after receiving yet another NOD and she indicated that I can file a lawsuit against my former VSO for not assiting me devlop my initial claim in August 1996. Any feedback you provide will be most helpful."

Tha is correct- a VSO can be sued in a state court of they caused you damages.

That is the key- damages- monetary losses.And a right to that loss

I sued my former NSO but I won my claims during the process.I had not incurred any damages.

If you are successful in the CUE there would be no monetary damages.

The best way to check the old regs on a disability is to search at the VA web site for a similiar claim resolved in the year of your decisions:

http://www.va.gov/vetapp97/files4/9736768.txt

This claim contains migraines regs applicable to your claim-there are claims from 1996 there too.

In the above case the veteran's Diagnostic code was 8100 for a 10% rating.

If the veteran did not appeal this further(this case was on remand for more info) and years went by and then the veteran found that in 1997 the VA had sufficient medical evidence that would have warranted a hgher rating-

he could file a CUE and state that the VA clearly erred in using the wrong diagnostic code-based on the medical evidence they had at the time- and that the rating should have been a higher one as he fit into a higher rating criteria.

This case was remanded because the BVA did determine the veteran's evidence warranted a hgher Migraine rating and they took note of the time the veteran said he had lost from work due to migraines.

If the veteran, on remand, could prove that with work statements and any other medical documentation- this would warrant a higher rating.

Edited October 4, 2006 by Berta

[jrenee]

Berta,

Thanks for the information. I'm reviewing my original claim whereby the migraines were denied. If denied in 1997 was it appropiate to give a diagnostic code of 8100? What do they mean by adjudicative?

As mentioned previously I have filed a cue claim and received a state of the case this August. The notice however, does not address the cue claim filed in regards to the migraine headaches. Rather they have repeated themselves as follow "Entitlement to service connection for migraine headaches was previously denied Jan 1997, you did not perfect an appeal to the BVA, therefore that decison was final one year....." It would appear that they did not receive my cue claim as it has not been acknowledged. How do I address this issue?

Renee

[Berta]

If I were you I would use the VA inquery system at:

https://iris.va.gov/Scripts/iris.cfg/php.ex...p_sp=&p_li=

Ask them to tell you the status of your CUE claim.

"If denied in 1997 was it appropiate to give a diagnostic code of 8100?"

The DC 8100 code covers all ratings of migraines -did they give you a NSC or SC rating at "0"?

If the medical evidence they had at that time was supportive of a compensatable service connected rating ,higher than "0" -then they possibly committed a CUE in that decision.

If this was a "0" NSC (non service connected rating) then they found no link to your service.

It is hard to say with limited information here on that older claim.

Why did they deny the older claim?

What % do you get now for service connected migraines?

The BVA link I gave you shows how they determine a compensatable rating for migraines.

There are many migraine claims at the BVA-this is another one from 1996 and this also has the same regulations you need to fulfill:

http://www.va.gov/vetapp96/files4/9632087.txt

"The veteran received 30% for migraines but did not fulfill,by medical evidence, a higher rating.Medical evidence for migraines includes affect to work history.

The evidentiary record does not substantiate that the

veteran’s headaches are reflective of migraine with very

frequent completely prostrating and prolonged attacks

productive of severe economic inadaptability, the criteria

for the next higher evaluation of 50 percent under Code 8100.

Further, the veteran is not alleging that his headaches have

been productive of severe economic inadaptability. The

veteran has been gainfully employed and intends to continue

to work. The evidence as a whole shows that truly

prostrating attacks of migraine are only occasional, and the

condition more nearly approximates the criteria for a 30

percent than a 50 percent rating. Thus, the current 30

percent rating should be assigned. 38 C.F.R. § 4.7."

Edited October 6, 2006 by Berta