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How Do I Proceed


CKHodges
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Question

I spoke with length to a 1-800 rep on Friday. According to her data and my recently received (10 Nov 13) Supplemental Statement of the Case, the Regional Office completely disregarded my request to review my skin condition. They did complete a review on my PTSD and increased that rating. However, after speaking with the phone rep my case will now go before the BVA and sit for 656 days...or she said I could file a CUE. I've attached documentation that the VA has received on numerous occasions regarding my case. I fully believe that clear medical evidence, case law, and the CFR supports my claim and the initial rating date.

My question is how do I proceed from here? Do I file a CUE or sit for two years waiting on the BVA?

Any thoughts would be welcome.

Thanks!

Chris

Should I CUE.pdf

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You might have a claim under 38 CR 3.156, if newly discovered SMRs that VA didnt consider would warrant a better EED.

Plenty of info here under a hadit searchj for 38 CFR 3.156 .

As for CUE, you need to go over our CUE forum here.

A CUE claim has to be specific and relies solely on established medical evidence in VA's possession at time of alleged CUE.

Edited by Berta
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You have written this out clearly and chronologically and did a nice job.

It is not written as a submission for cue.

You have conflicting dates.

" I am requesting that my folliculitis rating be increased from 10% to
60% back dated to the date of my original claim of 11/01/2001."
" I am requesting that my service connected rating for Folliculitis be
increased to 60% with an effective date of 11/01/2011."
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Thanks so much for your replies. This was the document that I sent back in July 2014 and also October 2014 in the hopes that the RO would fix my claim without going through the lengthy BVA process. I know that is rather idealistic of me, but I had to try.

I actually attached the copies of my service medical records that I referred to. This was not new evidence, it was evidence that should have been reviewed with my claim. I simply think that the claims officer was unaware of the 60% systemic therapy policy and that my medicine (which I was on for years while in the service) counted as a treatment therapy that garnered a higher rating. I am trying to show via my service medical records that I was on systemic therapy...and I think by listing the items in a chronological order and including my medical records I did that. Simply put, I was on the medicine for well over the required 12 months and remain on it to this day. I did not include the 60+ pages of my medical records here...didn't want to clog up the server, plus I would have had to cross out lots of other data.

Great catch on the 2001 vice 2011 date. I actually had fixed that on the letter I submitted to the VA but mistakenly used that one as my uploaded document. I am indeed asking to be back dated to 11/01/2011.

Putting this into a CUE format is what I am trying to do. I realize I need to quote the appropriate CFR's and thanks for including other forum areas for me to research. Before I go through that process I am still wondering if a CUE is the best approach on this? I know that is going to require a looking glass and some hocus pocus to figure out, what the ideal way to deal with the VA is. But still knowing that I have a two year wait with a BVA or what I feel is a pretty simple and clear cute CUE, I am leaning towards redrafting this in CUE language and submitting via that process.

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Thanks so much for your replies. This was the document that I sent back in July 2014 and also October 2014 in the hopes that the RO would fix my claim without going through the lengthy BVA process. I know that is rather idealistic of me, but I had to try.

I actually attached the copies of my service medical records that I referred to. This was not new evidence, it was evidence that should have been reviewed with my claim. I simply think that the claims officer was unaware of the 60% systemic therapy policy and that my medicine (which I was on for years while in the service) counted as a treatment therapy that garnered a higher rating. I am trying to show via my service medical records that I was on systemic therapy...and I think by listing the items in a chronological order and including my medical records I did that. Simply put, I was on the medicine for well over the required 12 months and remain on it to this day. I did not include the 60+ pages of my medical records here...didn't want to clog up the server, plus I would have had to cross out lots of other data.

Great catch on the 2001 vice 2011 date. I actually had fixed that on the letter I submitted to the VA but mistakenly used that one as my uploaded document. I am indeed asking to be back dated to 11/01/2011.

Putting this into a CUE format is what I am trying to do. I realize I need to quote the appropriate CFR's and thanks for including other forum areas for me to research. Before I go through that process I am still wondering if a CUE is the best approach on this? I know that is going to require a looking glass and some hocus pocus to figure out, what the ideal way to deal with the VA is. But still knowing that I have a two year wait with a BVA or what I feel is a pretty simple and clear cute CUE, I am leaning towards redrafting this in CUE language and submitting via that process.

My best suggestion I can provide for now is to do a BVA search - keyword CUE, tick about 6 or 8 years worth,

and start studying and researching the issue of cue.

What is a cue.

What is NOT a cue.

EXACT criteria for when and how to submit a cue.

Then after you study say 40 or 50 cases THOROUGHLY . . .

do a bva search on your exact issue for your cue submission.

Study grants AND DENIALS.

http://www.index.va.gov/search/va/bva.jsp

Keep in mind to really study cue claims that were denied or dropped due

to not being filed correctly.

The denied claims are very important to study so you can see where land mines

will trip you up.

In doing true due diligence this way - you will become familiar with VA / BVA / CUE language

and use it in all submissions to all of them.

You have to know exactly which Rating Decision to file the cue on and the exact law or reg that

was broken or misapplied.

Cue can not have anything to do with how the evidence was weighed, it must be that the statutory

law or reg was not followed.

It can not have anything to do with the BOD, it must be absolutely clear legal error to reasonable minds . . .

(yea right - we are dealing with the VA - lol).

It can not contain ANY evidence produced AFTER the rating decision you are submitting the cue on.

If this concerns evidence that was not a part of the decision you are cueing, such as SMR's that were not

part of the record considered - that would not fall under a cue,

that could be an appeal for EED under 3.156

http://www.ecfr.gov/cgi-bin/text-idx?SID=dea87f94de1039678cf8f4527219892c&node=se38.1.3_1156&rgn=div8

OR

3.157

http://www.ecfr.gov/cgi-bin/text-idx?SID=dea87f94de1039678cf8f4527219892c&node=se38.1.3_1157&rgn=div8

I'm limited on time for now and this is about all I can jam in.

Other's will come in and correct if I posted something wrong.

jmho

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Thanks for looking at this for me. I reviewed 38 CR 3.156 and could see how that would apply if my medical records were not used during my initial rating. However, my medical records were used and clearly my history of systemic therapy was overlooked. In fact, even my C&P annotated that I was on systemic therapy during my active duty time. Again, I simply think that the RO missed this clear fact of the case. It isn't new medical evidence, as what I listed was all used in determening my initial rating. So under that premise I think it meets the criteria for a CUE. The CFR states that 60% is garnered for folks on systemic therapy for 12 or more months. My medical records that were used to give me a 10% service connected rating show that I was on systemic therapy for years. That is where I think the regulation was not followed correctly and why this is a CUE. But this is my initial attempt to understand this process, so I very well might not have my thoughts correct.

I did "google" several CUE's online and didn't find any matches for my specific case. Seems I need to broaded my search topic a little. I did however review several CUE's regarding other matters, so at least that is a start in understanding the verbage for my case.

I really appreciate your thoughts on this. The VA certainly doesn't make anything easy, nor is this is timely process. I feel like a red shirt guy on Star Trek, getting ready to beam down to a planet...

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"The CFR states that 60% is garnered for folks on systemic therapy for 12 or more months. "

Was that the same regulation at time of the past decision you want to CUE?

If so, they misapplied the diagnostic code rating criteria and might even erred in using the wrong diagnostic code. Maybe this can help:

http://vets.yuku.com/topic/87596#.VGtm3Mk08tM

The fact that CUE has to be a

"legal error" means often that the rating sheets contain the CUE.

For my SMC CVA CUE I claimed 3 CUES, 1.lack of proper diagnostic code , 2.lack of proper rating percentage , and lack of proper application of the SMC mandate for the CVA claim, based on all evidence in VA's possession during the veteran's lifetime.( my husband was dead and this grew out of his 2 claims pending at his death )

and for my IHD CUE they didnt even rate my husbands IHD or mention it on the rating sheet.

That is because it has been malpracticed on and ,although they admitted to that in my 1998 1151 award letter regarding malpractice on his CVA and his IHD,and ' multiple other 'deviations from a standard of care' they never mentioned on the 1998 rating sheet and never rated the IHD at all with a % and that was a separate CUE I won.

CUES can succeed if they concur with the 3 'prongs' of CUE.

Those prongs are described here at length and stated within:

http://www.va.gov/vetapp14/Files2/1414821.txt

SOmewhere here I have at least one CUE template posted and will try to find it.

I make them short and sweet.

3 prongs covered and a statement that the CUE manifested an altered outcome and was monetarily detrimental to me.

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