Recommendation For An Attorney To File Cue

[usaf1970]

Hi all,

Can anyone recommend a decent attorney to help me file a CUE claim? I separated the AF with proteinuria back in 1996, kidneys got worse and have been on meds since like 1999 for my kidneys. My original Disability claim was filed in 2008 and denied in early 2009. I did not file an appeal, because I didn't know what the heck i was doing. I have dug through the internet and this site and learned a lot, I requested my claim be re-opened in 2014 and was awarded 60% service connection for my kidneys in October or November. This is great for me, but I want to know if I have a claim for a CUE.
While I have read up and tried to educate myself about the CUE process, I don't feel comfortable filing that myself. I have tried to work with my VSO, and they asked me to assign them as POA....but frankly I feel like I'm doing all the work myself and I just want to be sure this gets done right.

I am currently working on adding some secondary conditions to my original claim. I have my doctor drafting an IMO letter to include in my secondary claim. Once that is done (soon), I want to file a CUE.

Does anyone have an attorney they can recommend? I live near Cincinnati, OH if that matters. Also, what should I expect their cut to be if I'm awarded some sort of retro pay? I'm thinking it will be 50% which seems harsh, but if that's the going rate I guess it is what it is.

Thanks for your time.

Pat

[Berta]

Attorney fees are 20% for VA claims matters.

For CUE claims , there is no additional IMO costs because a CUE rests solely on the medical evidence VA had at time of the alleged CUEd decision.

I recommend Bob Walsh because he has won CUE claims and also we did a great radio show here with him and he, like myself , thought the claim I discussed on the air with him was a CUE at first but actually it was a 38 CFR 3.156 issue....even better ..I think the show was in September and should be available here but I cant find it.

The fact that he immediately thought the same thing I did ( I have won CUE claims) makes me very confident in his ability to win a valid CUE issue as well as a 38 CFR 3.156 claim.

But a valid CUE issue rests on many factors.

His contact info is here:


He will be on our Blog Radio show here tomorrow and the show can be heard via the blue thing to the right of the main forum page, and will be archived.

"I requested my claim be re-opened in 2014 and was awarded 60% service connection for my kidneys in October or November. This is great for me, but I want to know if I have a claim for a CUE. "
Possibly ........

"Proteinuria is a sign of chronic kidney disease (CKD), which can result from diabetes, high blood pressure, and diseases that cause inflammation in the kidney."

http://kidney.niddk.nih.gov/KUDiseases/pubs/proteinuria/


That is a well established medical fact.

Did the VA, in the denied past decision give you a NSC rating at least at 10% for the proteinuria?

Did they give you any HBP NSC rating?

High blood pressure can cause or be caused by kidney disease.

I said possibly , because that rests on whether the VA gave to a non service connected rating for the proteinuria , at least at a 10% level.

If they did then I feel the CUE is VERY worthwhile to pursue.

Without a ratable level, a disability cannot manifest an altered outcome.( the retro amount)

Why was the reason they denied?

It might not even matter if they did rate you at least at 10%.

They might have even used the wrong diagnostic code and that too could be a factor in CUE.

If you contact Bob, tell him I think,(Berta Simmons) if the proteinuria was rated at least at 10% NSC,on the older denial, that this is a valid CUE claim.

Edited February 3, 2015 by Berta

[Guest]

Of course Berta is the Guru of CUEs,

You can file a CUE claim or you can file a NOD or you can file both a CUE and a NOD. Both claims will get you the same results. You are seeking retro pay back to your original claim filing. The thing about CUE claims are they have to be specific in laws and regulations. Both claims have to do with the evidence in your file at the time of the original claim. CUE claims are harder to win but not impossible. Since you just received your award around October/November 2014 time frame, IMHO, it would be a lot easier for you to win a NOD if the evidence warrants it.

I do agree that 38 CFR 3.156 would be the best way to go but as I said it really depends on the evidence in your file at the time of the original decision. It will take VA time to process both claims but why just file a CUE claim that you may or may not win and you can file the NOD at the same time to have a timely appeal to cover the same period. I have seen and helped veterans with both and VA denied the CUE claim but granted the NOD. It is crazy what they do but if it will win a retro payment why not file them both you can ask an attorney about both claims.

[Berta]

I need to clarify something and maybe VA got this ass backwards right from the gitgo:

"Proteinuria (albuminuria) is a condition of having too much protein in the urine which results from damage within the kidneys.
http://www.diabetes.co.uk/diabetes-complications/proteinuria.html

Proteinuria is not mentioned in the VA Schedule of Ratings, but is the same thing as Albuminuria.I wonder if the VA knew that when they denied the past claim.

Also do you have a copy of your complete SMRs? I am wondering if they ever took an BUN readings or creatinine readings, either in service or after service, for your C & P exam on the denied claim..

These readings were part of my evidence for my husbands undiagnosed and untreated AO DMII.
Every Blood chem reading has significance and it can take a lot of time to go over Blood chem reports.

I guess I am thinking what if the VA misinterpreted your condition and said proteinuria is not ratable because they didnt know it is also called albuminuria.

And they might not have rated it due to not understanding BUN and Creatinine values,which the C & P examiner should have noted in the C & P..

?)

"Renal dysfunction:
Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and ; albuminuriaor, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, estpecially cardiovascular 100
Persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion 80
Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101 60
Albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 30
Albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101 0

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=c130ec487ea61b8a40ad0836188b94bc&rgn=div5&view=text&node=38:1.0.1.1.5&idno=38

I would check the rating sheet if I were you very carefully to see if the diagnostic codes are corrct in the older decision as well as even in the newer awarded decision.

[Berta]

If you feel your award rating is not correct,by all means file a NOD and tell them why they are wrong.

Are you able to work with this condition?

If not do you get SSDI and is that solely for the renal condition?

I noticed the 60% criteria for the 60% they awarded you and itappears they might have considered your HBP in that award.

"Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101 60


If not you could certainly claim the HBP due to the renal condition, if you have HBP and if the renal disease has caused it.

With a CUE claim, that is an issue separate from a NOD, and why wait to file it, if you feel you have strong evidence to support a CUE.

In 2003-2004 I filed 4 CUEs (in two separate submissions) on a 1998 decision.

My RO stalled on it for years and I was set for BVA transfer and I was thrilled.

The BVA can read.

But I also had a Nehmer AO claim pending and asked the Nehmer people to resolve my CUEs as those claims were filed prior to my IHD AO claim, and one of them was contingent on a proper IHD AO award.
It took Nehmer RO (Philadelphia) mere weeks to award those CUEs.

Buffalo RO from 2003 to 2011. Ridiculous rhetoric with no consideration of my evidence.

Phila RO , denied even the AO IHD death claim ...Dec 6th 2011, faxed CUE via Fax and IRIS, for proper and legal AO and SMC CUE award...got it by January 6th. 2012.

Having a lawyer can avoid that kind of BS.

CUE claims should be short and sweet.

1. state the legal error they made and refer directly to the date of, and wording of the past decision.
It is a good idea to enclose that decision and the rating sheet with the CUE as evidence.

2. tell them how their error manifested an altered outcome for you ( my altered outcome was in the tens of thousands)

3, refer them to any medical evidence they had ,( in their (VA's) "possession" at time of the alleged erroneous decision (I enclosed that evidence with my CUE claims.

Cue is like the Watergate Question ...what did they know and when did they know it.

For a Pending CUE I have ,there is one piece of evidence I enclosed that might not ever have been in my C file at all. It came from a former VA Secretary.
It was however "in VAs possession "(regardless of what part of the VA it was from ) and I never thought I would need it when my husband received this letter in his lifetime.

It is a beauty.

Actually I think it is all they need to award my pending CUE.But I sent them much more evidence too.

Every claimant who has been denied in the past for what since has become a SC award, should consider the CUE regulations very carefully.

Edited February 3, 2015 by Berta

[HARDAWG USMC]

Hello everyone,

I was reading the posts in this thread and was wondering If I have a possible claim since I too have high creatine levels in my urine. Not quite sure if it's service related, but the tests were done at the VA back in 2010. Was denied life insurance several years ago after the same results with potential provider.

Thanks!

First post!

[Berta]

Normal or high creatinine levels often depend on many other factors.

Certain medications can affect the readings. Even NSAIDS.

http://www.nlm.nih.gov/medlineplus/ency/article/003475.htm

But you mentioned 'creatine levels',which is different from creatinine levels:

http://www.wisegeek.com/what-is-the-difference-between-creatine-and-creatinine.htm#didyouknowout

I am pretty sure, prior to getting a CT scan years ago that I had the creatinine blood test.

I know they have to check kidney functions before giving a CT scan.

BUN levels are important to the Blood urea nitrogen-to-creatinine ratio (BUN:creatinine).

But these test results were actually only a small part of my DMII AO death claim.Alanine aminotransferase and : Serum glutamic pyruvic transaminase readings were a much bigger part.

I played doctor when my husband suddenly died.And it was a LOT of work. Because there were no IMO doctors advertising on the net in those days.
And many lawyers told me I could never win a wrongful death case against the VA but I did.

These days there are plenty of IMO doctors on the net as well as lawyers who represent veterans.

When I filed my AO DMII death claim,years after the FTCA case, in spite of probative medical evidence, I also got IMOs to support that claim.

If something in your med recs concerns you, best to ask your VA doctor about it. And maybe even better, ask a non -VA doctor about it.