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 (see edit history)

[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 (see edit history)

[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 (see edit history)

[carlie]

Oct 3 2006, 06:10 PM Post #7

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

**************************************************************

John,

I DO feel this could be beneficial to your CUE claim if the doctor is willing to do this for you. I would take the doctor a copy of 38 CFR ,

§ 3.105 Revision of decisions.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.

and

§ 4.10 Functional impairment.

The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.

[41 FR 11292, Mar. 18, 1976]

I believe you said in prior postings that your doctor stated you could not perform any type of work or hold employability due to your mental health.

IF I WERE YOUR DOCTOR I WOULD ADDRESS TO VA IN THIS LETTER A QUESTION OF WHY VA DID NOT ACCEPT AT THE TIME - THAT AS YOUR DOCTOR I WAS INDEED PROVIDING COMPETENT MEDICAL EVIDENCE AS TO YOUR TOTAL INABILITY

TO PERFORM EMPLOYMENT OF ANY NATURE.

Remember under CUE the evidence can not change or be added to in any way,

but from what you have posted earlier it seems like your doc covered you completely as at least an informal claim for unemployment.

carlie

[Vike17]

A difference of an opinion is not a CUE. That became a judgmental call at the time of the rating to which opinion was more probative.

Vike 17

[john999]

Right but there was an inferred claim for IU that was left open and never addressed. The doc said I was unable to work due to my SC disability and the VA said that did not apply or was N/A. Could I somehow go back and address an claim for IU under CUE or just under itself.

[Guest fla_viking]

Dear Jhon

Its my understanding you did not appeal that ruling therefore the court will not let you claim CUE.

I can see the VA channeling your issue into one of you disagreeing with the weighing of evidence, which is not gounds upon you can raise CUE. VA stupidity is not CUE. VA violatons of its own laws which deny your claim may be a good CUE claim.

Terry Higgins

[john999]

I get the point but I make the effort. The journey begins with a single step.

[Vike17]

If a doctor made that statement in some treatment records or in a C&P exam, that does not costitute a Inferred claim. Individual Unemployability would only be inferred when;

"the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and there is evidence in the veteran’s file or under VA control that indicates he/she may be unemployable due to SC disability.

This is according to the M-21 Manual Re-write. The only thing you may want to look at is the actual regulation in affect in the early 1970's when your first rating was produced. If this was also in affect at that time, you'll want to find out what the schedular requirements were during this period. What was your combined rating when you received your rating back in the early 1970's?

Does this make sense?

Vike 17

Edited October 7, 2006 by Vike17 (see edit history)

[john999]

The TDIU regulation states that it is the established policy of the VA that all veterans who are unemployable

because of service connected disabilities shall be rated totally disabled. 38CFR 4.16( That is the definintion of extra schedular. I was unemployable and should have been rated totally disabled. Maybe that does not rise to a CUE because of the VA's lying and misreprsenting my doctor's statement's. The information the VA used for my rating was from a shrink I saw while hopitalized. I was in for two weeks. I had no job. How could they not consider me for IU. That is like the shrink I saw six years ago who said he could not determine if I was IU because I was unemployed. Alex Humphrey says I may have an inferred claim for IU. I trust his judgement.

[Vike17]

Yes, it is the "established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." However, for the VA to infer an issue of IU the MR states the the criteria of sub paragraph (a) must be met.

Having said that, according to the MR part 3, subpart 4, Chapter 6, section B, paragraph 5, it states;

"Consider the issue of entitlement to an extra-schedular evaluation in compensation claims under 38 CFR

3.321((1) only where the issue is expressly raised by the veteran, or there is evidence of exceptional or unusual circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to disability (for example, marked interference with employment or frequent periods of hospitalization)

4.16(:D whenever the issue is expressly stated, when there is evidence that the veteran may be unable to secure or follow a substantially gainful occupation because of disability, or total disability based on individual unemployability (IU) cannot be granted on a schedular basis"

So, if there wasn't any other evidence besides just the doctor stating you were unemplyable due to yor service-conncted disability, I'm not sure that would be enough to warrant VA at the time to infer the issue of IU. Do you see what I'm getting at? If you had specifically brought the issue of IU to the VA, then that would not be an inferred claim by VA, that would constitute probably at the least an informal claim on your part.

Also, you need to find out what the laws and regulation were in the early 1970's when the VA first rated you.

"That is like the shrink I saw six years ago who said he could not determine if I was IU because I was unemployed"

There is a big difference between being unemployed and being unemployable due to service-connected disabilities.

"The information the VA used for my rating was from a shrink I saw while hopitalized. I was in for two weeks. I had no job. How could they not consider me for IU"

If you were hospitalized for two weeks, is that enough evidence to show the VA you were unemployable due to that condition? Did you not have a job because of the condition at hand and if so, did the doctor specifically state that? Do you see why the VA may have not considered IU?

If you trust Alex's judgement, then so be it. It wouldn't hurt my feelings an bit!

Vike 17

Edited October 8, 2006 by Vike17 (see edit history)

[john999]

Vike

I understand what you are saying and I know you are trying to be helpful and I appreciate that.

If you read the definition of the work "Inferred" (1.) to conclude from evidence or premises. (2) to reason from circumstances or surmise. (3) to lead to as a consequence of conclusion (4) To hint, imply

Do you think that my doctor saying I was uable to work might hint that I was unemployable? In an inferred claim the VA is supposed to pick up the hints or surmises and go from there. If a condition was claimed by the veteran then it would not have to be inferred by the VA. I had glucose levels above 126 mg and the VA Agent Orange Exam said "likely as not " that I also had perhipheral neuropathy in upper and lower extremities. Did the VA infer a DMII claim? You bet they did not, nor ever would until I filed a claim. The VA does not take the hin even if it is shoved in their faces at my VARO. I have arteriosclerosis in my left leg. The VBM says that this condition is so closely linked to DMII you don't even have to present a nexus for it to be SC'ed. I am going to file a claim, but is this not the best indicator of an inferred claim. The VA will never infer a connection between these two diseases unless I file a claim. What I am saying it that the idea of the VA picking up on inferred claims is a myth unless the vet file a claim. So many thousands of vets have SC conditions that are never treated or connected because the VA is not doing their jobs. That is what I am pissed off about. If the VA had not low balled me on purpose I would not be filing a CUE years later. The low balled me because I left the hopital AMA and because they wanted to save money.

[carlie]

John,

If VA didn't (at the time) address the issue of unemployability -- then DID

THEY ADDRESS the issue of pension ? Could this pertain to your claim in some way ?

carlie

§ 3.151 Claims for disability benefits.

(a) General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.

(b) Retroactive disability pension claims. Where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the veteran became permanently and totally disabled. Additional requirements for entitlement to a retroactive pension award are contained in §3.400(b) of this part.

Cross Reference:

Informal claims. See §3.155(b).

(Authority: 38 U.S.C 5110(b)(3))

[50 FR 25981, June 24, 1985]

[john999]

Carlie

No pension or IU. Just 10% and that was it. 10% for a person unable to work.