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Cue Opinion


usaf1970

Question

I met with my POA today and reviewed my records. I was denied in 2008 for service connection for my kidneys. The RD stated it was denied due to not finding service records of any treatments while I was in for chronic kidney disease, and also they did not receive proof that I currently had a kidney disease. I did not physically receive this letter, i had moved around that time and for whatever reason I did not physically get the letter. However, I followed up with my POA at that time and he explained that I was denied because they did not find service records. He requested a more legible copy of my service records. That is the last I heard from them. The 1 year to appeal expired. This past year I replied and received service connection for my kidneys. My question is do I have any shot at all of getting my sc date pushed back to 2008? My current POA heard my story today and stated they would not file a CUE because I have no chance. Im sure they are right...but I wanted to hear from people on here. I trust the people on here. Let me know what you think. Is this worth getting a lawyer to fight the va?

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  • HadIt.com Elder

If you did not appeal within the one year time frame then the odds are against you. I found this out after an 8 year appeal all the way to federal court. The VA sent my decision notice to the wrong address and it was returned to sender addressee unknown. How can I file an appeal when I don't even know my appeal rights? I am still working on this via a lawyer. If in doubt I would file the CUE. What have you got to lose. If you believe you have a shadow of a chance hire a lawyer. These VSO's are not up to the job. If records existed that you had kidney disease in service and VA did not produce them you might be able to have a shot at a EED. I would not give up just because lazy and dumb POA does not want to make the effort.

John

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I met with my POA today and reviewed my records. I was denied in 2008 for service connection for my kidneys. The RD stated it was denied due to not finding service records of any treatments while I was in for chronic kidney disease, and also they did not receive proof that I currently had a kidney disease. I did not physically receive this letter, i had moved around that time and for whatever reason I did not physically get the letter. However, I followed up with my POA at that time and he explained that I was denied because they did not find service records. He requested a more legible copy of my service records. That is the last I heard from them. The 1 year to appeal expired. This past year I replied and received service connection for my kidneys. My question is do I have any shot at all of getting my sc date pushed back to 2008? My current POA heard my story today and stated they would not file a CUE because I have no chance. Im sure they are right...but I wanted to hear from people on here. I trust the people on here. Let me know what you think. Is this worth getting a lawyer to fight the va?

The only thing you can do at this point is review both ratings. The rating in 2008 and your recent rating. What is the difference in the decisions? What evidence did VA use to grant this rating? If it is within one year and VA used new and material evidence then you can file a NOD requesting an EED based on 38 CFR 3.156C. It has been discussed a lot on this board. Don't let any deadline pass for you to submit a response to VA or you will be out of luck.

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  • HadIt.com Elder

I agree ....to file the CUE and/or a re open under 3.156.as Pete said.

Do you have copies of your SMRs and your C file.

If you can scan and attach the older decision here (cover C file number, name, address prior to scanning) we can get a better idea of what you need to do.

If the VA had evidence of the renal disease, at a ratable level , as NSC, in the 2008 decision, that sounds like CUE to me.

In 1998 my former POA said he did not advise me to file a NOD on a 1151 award for DIC.

In 2003 when I re opened the DIC claim for direct SC death, I realized they had committed CUE in the 1998 decision that I had not appealed.

I filed 2 separate CUEs (one included 3 CUES on the Stroke and one on the IHD, and they were both awarded in 2012.....

Dont get discouraged on that time line......

My VARO (Buffalo)refused to read my legal evidence. When my 2003 AO IHD death claim went to the Nehmer VARO,I immediately wrote to Phila and told them that these 2 CUE claims were contingent on a proper Nehmer award and they

adjudicated them and awarded.

Since then I have filed CUEs on fresh decisions,during the appeal period and have had 2 denials 2 reversed.

My VARO still refuses to read my legal evidence that ,although they awarded 100% plus SMC posthumously for a continuous 22 months, was not paid as accrued because the Director said to me by phone that my husband's disability under 1151 was not permanent at death.

Say what? all of my evidence, mainly from VA, says it was.And VA provided no cure at all for the significant 1151 brain damage that even a C & P doc said was Permanent.

VACO told me that I already got paid the entire 22 months ( I did get 6 months retro under Nehmer for the CUE) per the PC screen this guy ( a Chief at C & P, DC , and I questioned if he instead was looking at the PTSD accrued award and he said no this is definitely for the 1151 stroke . I emailed the IG hotline at that point, asking them who got those 16 months, I sure didnt....

They didnt put that reason in the decision so I dont know how to appeal a phone.

My point is ......some ROs aggressively fight CUE claims and will try to string them out Particularly if they involve, like mine, a 5 figure award..

"My current POA heard my story today and stated they would not file a CUE because I have no chance."

Sounds like my former vet rep,one didnt feel I should file NOD on the 1998 decision and his boss told me I had no chance to succeed on my re opened DMII AO death claim.

Screw them.I won them both....

From what I see here you might get enough help here to file the CUE without a rep.It depends on the 2008 decision and the rating sheet.Maybe the rep could fax you a copy of that if you dont have it.

EVERY SC they grant ,that they denied in the past ,holds a potential for CUE.

But the CUE will be found most likely on the rating sheet.

In my case my DIC award rated my husband's stroke at 80%,but the DC codes were wrong as well as the rating , it should have been 100% based on evidence VA had.. SInce he also had 100% SC P & T PTSD in a separate posthumous award, and that was stated on the rating sheet, they should have awarded SMC.

The CUES were for .lack of consideration of SMC and, proper ratings for 1151 Stroke and also 1151 IHD.

I am surprised the rep still had records back to 2008 in your POA files.

Some reps discard old records.

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  • HadIt.com Elder

Having a current c-file (as of 2015) would be the cat's pajamas. Everything VA has on file includes a date/time stamp. You potential CUE/3.156(c )(1) will rise or fall on that. If CUE, then the correct facts, as they were known, were not before the adjudicator. As for manifestly changing the outcome, that is self-evident. The date the records were associated with the claims file will determine if that is feasible. With the 3.156 (c ), it again hinges on the date the service dept. records were associated with the c-file. If the rater wants to claim illegibility, then that cannot count as an acceptable receipt of evidence. The 3.156(c ) claim would be far easier to win but I'd spaghetti file and see which one sticks. Be careful not to allow them to only address one and ignore the other. They're famous for that.

Clear Prop.

Edited by asknod
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