New And Material Evidence And Cue

[Guest jstacy]

I am posting this information as a guide for the above.

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secb.doc

[Josephine]

John,

I am above on the post. I am at the BVA on a remand to the AMC and this case is under investigation.

My claim is on the desk of the two crooked psychiatrist reading this letter.

I placed a waiver against any decisions on my claim by any Regional Office, as my Form 9 was turned in 2 years before I received a final denial.

When I received the first C&P with the more likely than not. That R.O immediately transferred my claim to another state.

I filed my first claim in 1978 and was denied, filed again in 2002 and denied. Awarded a pension back to 1983 for 100% disability for this illness in 2003.

In 2004, I located all the Psychiatric Records and the letter by the Commanding Officer and turned in copies to the Va.

Remand from BVA

In support of her claim she submitted several service department documents she obtained from the National Personnel Records Center, including additional service medical records,which VA had not obtained previously.

I ask the BVA to make all decisions.

Thanks,

Josephine

[Guest jstacy]

You located the records yourself, Any record in the governments posession bears the responsibility of the VA to obtain as per duty to assist. If you reopened after 2000 and the VCAA. You may consider filing a Cue claim based on the information you have just provided. Wait until you get an award or denial. You can file a cue on a previous denied final claim. You should be OK since the BVA did remand, DID it go to the AMC or back to the original RO?

You are still allowed to present evidence in remand circumstance so an IMO is not out of the question.

Take a small break from this stuff, It is really getting to you. I can tell by your posts that is.

John

[Josephine]

John,

I was fine with all of this, but the lies that those two psychiatrist said about me, has taken its toll on me. I just won't their 2nd opinion.

I placed a waiver against any R.O making any decision in my claim and I am remanded to the AMC.

I will soon be finished with this mission.

It has been a long hard fight.

Thanks,

Josephine

[john999]

Josephine

I would let it alone except if you decide to get an IMO that would be something to pursue. VA C&P exams are tricky and you know they can go either way even when you have lots of evidence. The IMO is your doctor being paid by you. Think of the VA as being a big machine with no feelings or brain. That is what you are dealing with and not so much the evil empire. The VA does not care about you or me. It is just a grinding machine that will grind you to dust if you let it.

[carlie]

Josephine,

"I placed a waiver against any decisions on my claim by any Regional Office"

I'm pretty sure the WAIVER you've mentioned DOES NOT BAR a Regional Office

from the decisional making process on a vets claim, especially if it is remanded.

The only WAIVER I know of concerning a Regional Office is that when a vets claim is at a higher level (BVA or COURT) the vet can sign a WAIVER that whatever else they are submitting, they (the vet) is WAIVING the STEP of this submission going through the Regional Office prior to it going straight to BVA or Court.

Now maybe I've missed something in here, if so please let me know.

OMO,

carlie

[Josephine]

The only WAIVER I know of concerning a Regional Office is that when a vets claim is at a higher level (BVA or COURT) the vet can sign a WAIVER that whatever else they are submitting, they (the vet) is WAIVING the STEP of this submission going through the Regional Office prior to it going straight to BVA or Court.

I am sorry, that is what I meant to say. I placed a waiver against the R.O taking action on any new evidence that I turned in to the BVA in the future.

At that time, I did not know if my claim would be remanded back to Huntington, West Va. as they are also a Management Center.

My claim is at the AMC in Washington, D. C. . but a lot of claims are remanded to Huntington. W. Va.

I agree if the R. O would take the time to do the claims properly, the BVA and the AMC would not receive so many claims.

Thanks,

Josephine

[Guest jstacy]

Josephine, Actually back to Huntington may be a good thing, The office is not as slammed as the other ones and they seem to be more Veteran Friendly. My Ky claim was transferred thre and within a matter of weeks I had a Favorable Decision.

[Josephine]

John,

I am pleased that you liked them and they were nice to you.

Thanks,

Josephine

Edited November 1, 2006 by Josephine (see edit history)

[Vike17]

Jstacy,

"Any record in the governments posession bears the responsibility of the VA to obtain as per duty to assist. If you reopened after 2000 and the VCAA. You may consider filing a Cue claim based on the information you have just provided"

Failure in the "Duty to Assist" does not constitute a CUE.

Vike 17

[Berta]

Terry- I hope Vike answers this-

meantime here are some CUEs that were successful at the Court:

Sorakubo V. Principi---

BVA failure to apply appropriate rating reduction criteria

Joyce V. Nickolson,Sondel V West, Akins V Derwinski-

failure of VA to apply presumption of aggravation regulations

Look V Derwinski- VA improperly applied Sec 1151 criteria and prejudiced the veteran's substantive rights.

Myler V Derwinski- one of my favorites and I posted this here before---

failure of VA to assign proper percentage rating-decided 1991- retro back to 1953 !!!

I have posted others CUEs too that succeeded at the CAVC.

I think my own CUES would succeed at the court:

#1 Veteran was 100% SC for PTSD, and also well over 100% due to Sec 1151.

VA regs and OG Pres Op regarding a Section 1151 vet says the vet was eligible for SMC.

VA regs state a veteran will be considered for SMC when evidence warrants it.

VA said no way- under no circumstances (final decisions)

100% SC plus 100% 1151 equals SMC. Manifested outcome: retro accrued award.

(this is with a rater presently-VA denied because they said vet never filed a Sec 1151 claim his lifetime.

I replied that his Sec 1151 which I re-opened word for word after his death is right in the c file. I saw it in there. My FTCA and my Section 1151 were based,word for word, on the veteran's Section 1151.The 800# confirmed that both of his claims were at rating board the AM of his death)

# 2 Veteran was never rated for significant heart disease from 1988 CAD to 1994 death.

VACO said the veteran, who had never been diagnosed or treated for heart disease, had evidence in VA med recs of 1988 heart attack at the VA and further disabling affects of heart disease in VA med recs up to his death.Undiagnosed heart disease contributed to his strokes and to his death.

Undiagnosed heart disease was one of "multiple" issues of malpractice causing his death due to VA care.(Sec 1151 award and FTCA)

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

The VA must rate the veteran's heart disease , diagnosed 3 years after his death by VA.

Manifestly different outcome- higher level of SMC as accrued.The veteran died of heart attack.

My long point here is these CUES I have at the VA involve legal error in final decisions.

The medical evidence often sets the stage for CUEs but it is the minute a rater picks up a pen or gets on a PC and starts to ostensibly use VA case law and regs to determine ratings, DCs, lack of ratings, improper rating criteria applications, failure to consider OG Pres Ops, etc- that the error becomes clear and unmistakable.

There are more successful CUEs I posted at hadit-I will try to find them.

New and material evidence does not matter to a CUE claim.

And as Vike said- neither the DTA or the VCAA matters to a CUE claim.

Solely legal error ,within a final VA decision, causing more retro to the vet if successful.

If no retro is to be due the vet-the vet does not have a valid CUE.

NVLSP in the VBM always has much info on these types of claims.

Edited November 1, 2006 by Berta (see edit history)

[Brandy]

Terry- I hope Vike answers this-

meantime here are some CUEs that were successful at the Court:

Sorakubo V. Principi---

BVA failure to apply appropriate rating reduction criteria

Joyce V. Nickolson,Sondel V West, Akins V Derwinski-

failure of VA to apply presumption of aggravation regulations

Look V Derwinski- VA improperly applied Sec 1151 criteria and prejudiced the veteran's substantive rights.

Myler V Derwinski- one of my favorites and I posted this here before---

failure of VA to assign proper percentage rating-decided 1991- retro back to 1953 !!!

I have posted others CUEs too that succeeded at the CAVC.

I think my own CUES would succeed at the court:

#1 Veteran was 100% SC for PTSD, and also well over 100% due to Sec 1151.

VA regs and OG Pres Op regarding a Section 1151 vet says the vet was eligible for SMC.

VA regs state a veteran will be considered for SMC when evidence warrants it.

VA said no way- under no circumstances (final decisions)

100% SC plus 100% 1151 equals SMC. Manifested outcome: retro accrued award.

(this is with a rater presently-VA denied because they said vet never filed a Sec 1151 claim his lifetime.

I replied that his Sec 1151 which I re-opened word for word after his death is right in the c file. I saw it in there. My FTCA and my Section 1151 were based,word for word, on the veteran's Section 1151.The 800# confirmed that both of his claims were at rating board the AM of his death)

# 2 Veteran was never rated for significant heart disease from 1988 CAD to 1994 death.

VACO said the veteran, who had never been diagnosed or treated for heart disease, had evidence in VA med recs of 1988 heart attack at the VA and further disabling affects of heart disease in VA med recs up to his death.Undiagnosed heart disease contributed to his strokes and to his death.

Undiagnosed heart disease was one of "multiple" issues of malpractice causing his death due to VA care.(Sec 1151 award and FTCA)

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

The VA must rate the veteran's heart disease , diagnosed 3 years after his death by VA.

Manifestly different outcome- higher level of SMC as accrued.The veteran died of heart attack.

My long point here is these CUES I have at the VA involve legal error in final decisions.

The medical evidence often sets the stage for CUEs but it is the minute a rater picks up a pen or gets on a PC and starts to ostensibly use VA case law and regs to determine ratings, DCs, lack of ratings, improper rating criteria applications, failure to consider OG Pres Ops, etc- that the error becomes clear and unmistakable.

There are more successful CUEs I posted at hadit-I will try to find them.

New and material evidence does not matter to a CUE claim.

And as Vike said- neither the DTA or the VCAA matters to a CUE claim.

Solely legal error ,within a final VA decision, causing more retro to the vet if successful.

If no retro is to be due the vet-the vet does not have a valid CUE.

NVLSP in the VBM always has much info on these types of claims.

Berta,

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

Does this include any VA hospital or VA clinic? And is so, what are the regs that state this?

Thanks.

[Berta]

Brandy -if the VARO is aware of a hospital report or any diagnosis from a VA clinic- and the disability is claimed as due to service- the VA should rate the disability and state whether it is NSC or SC in their decision.

Say vet goes to VA Hospital for serious inner ear infection. But the blood work reveals he has diabetes,Type II .

Let's say he has claimed hearing loss due to his service and the SMRs and discharge shows he suffered and was treated for serious ear problems in service.

The VA could possibly find it more than likely that his hearing loss was due to inservice ear problems.

They would rate the hearing loss as SC with a percetage

and if he claimed the diabetes they would rate that as NSC with a percentage.

However, let's say the veteran above served in Vietnam- the VA would have to take into consideration his MOS in combat as well as his documented ear problems.

They would rate the hearing as SC.

Then they would have to rate the diabetes as most likely service connected due to exposure to Agent Orange. He would have a SC DMII rating with a percentage.

I am not sure if this answers your question.

You brought up a very important point.

The VA is supposed to rate and determine as NSC or SC every disability the veteran has.

They don't look for disabilities though.

That is why a veteran should put in their claim,every single disability they have.

Agent Orange vets have had NSC ratings for many years on conditions that then became SC due to the Nehmer decision.

Other vets might have a presumptive chronic condition and be treated for it but never claim it and only claim something else.

I know a WWII vet with multiple SC conditions.

Even though the VA treated him for years no one told him to file any VA claims.

Two years ago he finally got advise as to how to file claims.

PTSD, residuals from 2 PHs, COPD , alcoholism in remission that had caused further disability to liver, and many other conditions, I just hope his vet rep filed for TDIU too.

[Vike17]

Brandy,

VA does assign diagnostic codes (DC) to service-connected and non servce-connected disabilities. However, normally the veteran doesn't see them. The DC's are listed with the corosponding disability on what is called the "Code Sheet." This "Code Sheet" is normally the last page of the rating decision and generally isn't released to the veteran, just the POA. Having said that, if you don't have a POA, then the VA sometimes sends you the "Code Sheet" along with your rating. If you don't receive one you can request a copy from your regional office.

Also, in another post I think you asked a question about effective dates and hospitalization of service-conneded disabilities. Down below I posted the regulation that covers this.

SS3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of SS3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (Authority: 38 U.S.C. 5110(a))

(:) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (Authority: 38 U.S.C. 501(a))

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (:D(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24, 1995]

Vike 17

[Guest jstacy]

Jstacy,

"Any record in the governments posession bears the responsibility of the VA to obtain as per duty to assist. If you reopened after 2000 and the VCAA. You may consider filing a Cue claim based on the information you have just provided"

Failure in the "Duty to Assist" does not constitute a CUE.

Vike 17

Vike you are correct. In my case I am going after a previous decision which was rendered just after the VACC of 200 was implemented. The RO failed to consider the Service record as New Evidence for hypertension.

The VA had just gotton the SMR and alread had the Diagnosis post service from a Private Doc within the first year.

Had the RO looked at the evidence ( Which he did not because the SSOC stated there was no treatment, diagnosis of or complaints of in the service record), when actually there were 7 different occasions where it was.) 4 out of the 7 readings in the record are over 100 Diastolic and the first year diagnosis was based on 3 readings over 100 diastolic. The condition was again diagnosed by the VAMC in 1995.

I had priovided all of this information to the RO as well as a history of over 100 BP readings.

This case has nothing to do with the following VA Cue cop outs like Evaluation of the evidence or harmless error. This is proof that the RO was worthless as well as negligent in performing his duties. I had asked the RO (a different one) to call CUE on the VA itself.

I know I have won my claim and waiting for the paperwork and I have post claim plans.

I am going to ask the VA IG to investigate the RO for Negligent and fradulent activity by not applying the corrrect laws and regulations to claims. I am also going to ask the State Of Ky attorney General to investigate, As well as get the Governer involved. The Governor is also an MD. I will get the Democratic Congressman involved, as well as the press.

It is my goal to ensure every Veteran in this great state who was wrongfully denied get a fair shake and to get the benefits they deserve.

[Brandy]

Brandy,

VA does assign diagnostic codes (DC) to service-connected and non servce-connected disabilities. However, normally the veteran doesn't see them. The DC's are listed with the corosponding disability on what is called the "Code Sheet." This "Code Sheet" is normally the last page of the rating decision and generally isn't released to the veteran, just the POA. Having said that, if you don't have a POA, then the VA sometimes sends you the "Code Sheet" along with your rating. If you don't receive one you can request a copy from your regional office.

Also, in another post I think you asked a question about effective dates and hospitalization of service-conneded disabilities. Down below I posted the regulation that covers this.

SS3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of SS3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (Authority: 38 U.S.C. 5110(a))

(:) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (Authority: 38 U.S.C. 501(a))

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (:D(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24, 1995]

Vike 17

Vike and Berta,

I guess I was really asking about outpaient clinics. My situation is, I think I posted this somewhere, my husband has been 30% sc for 27 years for diabetes type 1. We have never filed for an increase until dec.2005 because we did not know that we could. My husband started going to the clinic when we first got out and continued for 10 years, just to get his insulin. After that we were settled and had jobs with insurance, etc. and he began to have some problems he started going to a private doctor. Then about 2001 he started going back to the clinic for eye and foot exams which are important for a diabetic. And he got prescriptions from them such as insulin, rx for gerd, rx for hypertension, etc. He see's a primary doctor there every six months and they did note that he had a below knee amputation in 1998 and that he has PVD, CAD, hypothyrodism. Last year he had triple bypass surgery, this year he had arterial surgery (stints in left leg and fix on right hip) Don't they have an obligation to alert the regional office about the veterans worsening conditions or at least inform the veteran what his rights are regarding asking for a increase?