Cue Won As O F03/27/15

[RSG]

Please folks tell me something, I won my CUE with the BVA as of last Monday.. Got my earlier effective date of May 7 ,1969.. Now what happens when the VA has to pay retro back to that date.. I do not understand how this works. And how they make a determination of how much they owe me. The records say 70% from BVA decision in 08 and BVA decision in 2010 set to 100% IU retro active to 04.. The claim has no been sent back to the RO..

Now what happens?.. Please respond..

RSG

Edited April 2, 2015 by RSG

[RSG]

And the best chart I could find was back to 1974...

[Navy04]

Congrats on the movement and looks like you have just a bit to go. Good luck and keep us posted. God Bless!!!

[Berta]

".I seem to have to get 30 years of records from 69 to 91, if I don't have those he says I will get nothing...0%"

Ron, if they determined the EED as 1969, they had to base that on something medically, that was ratable at least at 10%....

CUE claims rest on "established medical evidence", otherwise the EED would have been different.

This doesn't make sense to me, what the attorney said....

I have CUE pending, it is on an award they made in 2012 for a different CUE I filed.

The 2012 rested on the established medical evidence.

They granted the new CUE for additional 100% P & T plus SMC but said they didnt owe me any money

I raised a ruckus and the claim is at VACO.

One point I made to the Director of my RO was that, if there had been No monetary value from the git go on this CUE on the 2012 award, they would have denied right off the bat on that premise.

They paid 6 months eretro in 2012 under 1151 100% plus SMC, but awarded additional 1151 at 100% and SMC from March 1993 to Oct 1994, the basis of my current CUE ,but then said there was no accrued payment due.

They cited no regulations for that at all. Accrued benefits have become enhanced in the last few years, not altered to a sutvivors detriment.

In your case I dont comprehend why they awarded the EED without medical evidence, not only at that time, 1969 EED, but enough to award the next rating percentages.

So I am exasperated on what you just posted.as to trying to find old medical records.....Others will chime in here too......

Do you get SSDI?

How long have you been a VA patient?

Something is odd here... based on 38 USC 5109 and I cant figure out what the lawyer means,.

Others will chime in here too......

Of course many successful CUEs involved mega bucks,.,,,,

so they will try to snooker us out of whatever cash they can.

But Hang in there!

Edited April 2, 2015 by Berta

[broncovet]

Berta...

Gee, I have to ask you something. We have been posting back and forth for several years, dont even know how many.

Of course, I appreciate you, on several levels, both for the help you have given me, and other Vets. I also appreciate where this comes from, and I know the source..and share that source. Im sure you know what I mean.

Now, for my question. I noticed you were very positive, and congratulated RSG. My post was more than a little negative. Now, my question..as you know I am 100 percent for depression. Do you think (my) problem is related to depression or is it just that women are sooo much better at relationships than men? I mean, gee, even 5 year old girls start carrying around a "baby", and I did not even give much thought to being a father until, well, I knew I was going to be a parent.

Someone said women all have PHD's in relationships, while men's relation skills are in kindergarten. Thanks for your opinion on this.

Bronco

[RSG]

In your case I dont comprehend why they awarded the EED without medical evidence, not only at that time, 1969 EED, but enough to award the next rating percentages.

It was, the VA ,Al, DAV, and the VFW all ignored the facts, that the PEBR said that is what happened to me in the Service....They totally ignored the PEBR's words and lied.. All of them..

So I am exasperated on what you just posted.as to trying to find old medical records.....Others will chime in here too......

The attorney said I need those early records after my discharge to prove a higher % of disability at my time of discharge....

Do you get SSDI?

Yes I get SSDI.. And IU, because of the depression issue in both cases.

How long have you been a VA patient?

since about 1999, the initial paperwork from the military denied me any VA care back in 1969.. So being 19 years old, I didn't know any better...

Something is odd here... based on 38 USC 5109 and I cant figure out what the lawyer means,.

The other thing is what the heck is the Fenderson Rating? Never heard of that before..

Edited April 2, 2015 by RSG

[Berta]

Broncovet, this vet RSG has been through a lot and I focused on what appears to be an EED of `1969.

Regardless, all CUE claims are difficult and as he said, he was denied twice and then succeeded with a lawyer.

I am Happy for ANYONE who succeeds in CUE because it means,that the veteran or their survivor refused to accept some VA BS,
that other claimants might have walked away from.


I dont know how to answer your question about 'relationships;'. at all.

RSG:


I went back to some drafts I had done for the CUE in 2009.Did the lawyer raise these same arguments?


"1. The CFR printout I have enclosed-as Exhibit A clearly reflects that this regulation within Section 3.303 et al goes back to 26 FR 1579 dated February 24, 1961 and therefore was the regulation at time of alleged CUE in 1969 -which caused subsequent CUEs in 1972 and 1990 by the Los Angeles VARO-manifesting an altered outcome of the claim to my detriment.

2. The VA also committed CUE by their failure to properly apply the regulations within 38 USC 1111, and 38 USC 1153 regarding their erroneous finding of pre existing disability ,not aggravated by service. The Los Angeles VARO decision enclosed as Exhibit B dated June 17th 1969 clearly shows that no in service medical evidence was used to render this decision and the subsequent Rating Decision dated March 2, 1972 (enclosed as Exhibit C) states that NO exam was given to base the findings for this denial on-acknowledging the psychiatric disability as Diagnostic Code 9405, NCS with no rating for it.

5 A March 1969 Memorandum from the Medical Board (referenced on page 6 of the BVA award of August 2009) continues the erroneous 'pre existing' finding and without that clear error in light of all of the medical evidence of record, the memorandum could have read:

'the origin (of the diagnosis) was not due to the veteran's own misconduct,was incurred in the line of duty' when the erroneous applications of 38 USC 1111 and 38 USC 1153 are eliminated.

6. I have enclosed the VA Office of General Counsel Precedent Opinion as referenced in The BVA decision I received which reads in conclusion:

“Held:

A. To rebut the presumption of sound condition under 38 U.S.C. § 1111, the Department of Veterans Affairs (VA) must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. The provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C. § 1111 insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. Section 3.304(b) is therefore invalid and should not be followed.

B. The provisions of 38 C.F.R. § 3.306(b) providing that aggravation may not be conceded unless the preexisting condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111.

Tim S. McClain"

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Fenderson...many here have Fenderson ratings meaning, they had say, 10 % 1998 ,then filed for 30% granted 2000,same disability, then applied for Voc Rehab in 2004 and VA Voc rehab denied solely due to their sole SC disability , so they have evidence now of f TDIU and apply for

TDIU in March 2005.

meantime this vet gets a SSDI award in March 2004 solely for the same SC that was 10% in 1998.

Not only should VA do a staged Fenderson rating, to 50% and then at 70% at some point, based on the medical evidence, but better yet they should award TDIU back to

Not March 2005 ,when he or she sent in the TDIU form,

but back to the date the "entitlement arose: , per SSDI in March 2004.

The vet could still appeal for a Fendson rating for the period between the 10 to 50 and then the 50 to 70%.

There is more info here on this type of rating.

I am thinking I should have Cued them in 1997 .

Accrued award from 30% PTSD to 100% P & T PTSD.

How can anyone jump from 30 to 100?

because Fenderson might not have been applicable then, or if it was I didn't question them.

Still they went by the date "entitlement arose, using the SSDI award date as the EED, which pre -dated when my husband filed the TDIU form.by one year.

Asknod will chime in on Fenderson because I am probably leaving something out.