Nod Or Cue

[CKHodges]

Good morning all,

This is my first post so my concept of VA policies may be very much askew from reality. I currently have an appeal (submitted Jan 2014) in from my discharge claim of Oct 2011 for my 10% service connected skin condition. I believe I have discovered a clear and unmistakable error (CUE) in the original rating decision. In short summary my skin condition has required me to take several oral medicines to include those outlined in CFR 4.118 (systemic therapy such as corticosteroids or immunosuppressive drugs for the past 12 month period). I have taken these medicines for at least ten years while on active duty and have continued with those medicines since my discharge. My military and now private medical records can clearly show this. My original rating of 10% should be at 60% based upon the rating schedule and my continued use of these drugs within the past 12 month period (actually many years). With that said should I wait for the lengthy appeal process...or submit a CUE? Thanks in advance for your response.

Chris

[CKHodges]

Good morning all,

This is my first post so my concept of VA policies may be very much askew from reality. I currently have an appeal (submitted Jan 2014) in from my discharge claim of Oct 2011 for my 10% service connected skin condition. I believe I have discovered a clear and unmistakable error (CUE) in the original rating decision. In short summary my skin condition has required me to take several oral medicines to include those outlined in CFR 4.118 (systemic therapy such as corticosteroids or immunosuppressive drugs for the past 12 month period). I have taken these medicines for at least ten years while on active duty and have continued with those medicines since my discharge. My military and now private medical records can clearly show this. My original rating of 10% should be at 60% based upon the rating schedule and my continued use of these drugs within the past 12 month period. With that said should I wait for the lengthy appeal process...or submit a CUE?

[carlie]

Welcome,

I merged your 2 topics into one.

[CKHodges]

Thanks for merging my topics...wasn't sure if that would show as a double post, but obviously it did. Thanks!

[broncovet]

EVERYTHING is a lenghty process at VA. No shortcuts, unfortunately.

Since it sounds like you have already appealed, timely, that is you best choice. Reason: The "bar" for CUE is higher than for a traditional appeal. Cue requires you meet an "undebateable" standard of review, while an appeal gives you the "benefit of the doubt".

The main reason for CUE is if you did NOT timely appeal. However, sometimes, as Berta pointed out, you can ask the VA to cue themselves, BUT you still want to timely appeal if your one year deadline is approaching.

Dont make things harder for yourself with CUE unless there is no alternative, and filing a Nod is a good alternative.

[Berta]

I assume you filed a timely NOD (Notice of Disagreement) with the 10% rating and this is what is on appeal.

I also hope you told VA what you told us here as to why you feel the rating should be higher.

When you mean Appeal do you mean you also received a SOC and filed an I-9?

You can certainly ask the VA to CUE itself during the appeal process...There is no regulation for this, I made it up and it has definitely worked for me.....

BUT, what is the status of the claim presently as to any SOC or any DRO review pending?

On the Evidence list did they list all the evidence you mentioned?

Did they have all of the evidence you mentioned?

CUE is like the Watergate question...what is they know and when did they know it.....

Do you use IRIS or ebennies and do you have a vet rep.?

I had a CUE yourself request take a mere 3 weeks,on late 2011, another that produced a fast double Dro review , in 2005, but the one I have pending has been so frustrating to get any status on ,that makes sense at all ,that I emailed the Secretary to see what he can tell me.Obviously one cannot count on any maneuver to go fast with VA.

My point is, how I did these CUEs during the appeal period might only tie up your claim at this time and there is NO guarantee they will move the claim faster.

If the VA had the evidence that warranted a higher rating than the 10% , sure that is a CUE. .....because it is a violation of 38 CFR 4.6 ( that reg has POWER and has nothing to do with DTA regs) (Duty to Assist) ....but can you scan and attach the decision here as to their Reasons and Bases and the evidence list?

One more question....you received a VCAA letter that said IMPORTANT REPLY REQUESTED.

Did they ask you for more info and did they use that info in the decision and evidence list?

Was there any info you could not get in time for the VCAA response letter you sent to them?

If we can read the R & B part and evidence list we can help more.

Cover your C file Number ,name , address prior to scanning it.

[Berta]

broncovet we have dejavu...I think we both replied almost at the same time.......

"Dont make things harder for yourself with CUE unless there is no alternative, and filing a Nod is a good alternative."

That is a good point Broncovet.

I thought my current claim would go fairly fast but I forgot ..some of the people at my VARO cannot read.

To prove that point per IRIS they used the date of a Section 1151 claim I filed as the NOD date for the CUE yourself claim even though I had filed a timely NOD on the CUE claim.