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

[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?