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CUE...NSC, then SC

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broncovet

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Berta posted:

If you subsequently succeed on getting a SC rating for something VA deemed as NSC in the past, and it was at a ratable level when they stated NSC 30% PTSD for example on the old rating sheet,

and is exactly the same disability that they finally awarded (giving you retro just back to the date of that claim,

and all of the evidence they had established at time of the older decision should have warranted a SC rating then but they gave you NSC instead......

it is common sense that one should seriously consider the CUE regs here, and file a CUE."

end Berta quote

    This makes sense and is precisely what happened to me.  I was awareded 0% in 2002 (after appeal) 30% for depression secondary to hearing loss in 2004  AND NSC pension.  

    In 2009, the increased that to 100% for depression, and "essentially" made the NSC pension Service connected, effective in 2007.  So, what they are saying I was NSC and 30 percent, they later decided that was SC and 100%.    So, are you saying that is CUE, that they should have SC the pension from the get go.  When you get pension, you are basically unemployable due to NSC conditions, but they later said those conditions are SC.  

    My question is which regulation is this a violation of??  Thank you.  

 

 

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Can you scan and attach the pension decision Broncovet?

The pension criteria is a little different from SC at 100%.

 

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I found a case at the BVA whereby the veteran claimed CUE over a similar issue but , on his original application for benefits, it was clear to the board that the SC parts had been crossed out and that the application was solely for pension.

VA is supposed to consider all applications for  both service connection as well as pension, unless the veteran specifically only claims one theory. I am assuming that your initial application was for either NSC pension or direct SC comp..so this wouldnt apply to you but some vets only apply for pension.

http://www.va.gov/vetapp12/Files6/1242925.txt

In the rating decision that was part of my 2003 CUE awarded in 2012,  the rating for stroke was 80%.

The CUE they awarded (sort of 2 months ago....as I am fighting over the money took that rating up to 100% P & T based on the established medical evidence at time of the 1998 decision I cued, and changed it from NSC to 1151 'as if SC":...  so basically 

anything denied as SC and then awarded as SC could potentially bring retro under CUE,depending on what medical evidence they had when they made the denial...but a pension rating is a different aspect. I will try to find the pension regs here.

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This is what I mean by different criteria and a pension does not necessarily mean total disability exists and how VA determined what the "or" pertained to.

http://www.va.gov/vetapp12/Files6/1242925.txt

"Eligibility

Generally, a Veteran must have at least 90 days of active duty service, with at least one day during a wartime period to qualify for a VA Pension. If you entered active duty after September 7, 1980, generally you must have served at least 24 months or the full period for which you were called or ordered to active duty (with some exceptions), with at least one day during a wartime period.

In addition to meeting minimum service requirements, the Veteran must be:

  • Age 65 or older, OR
  • Totally and permanently disabled, OR
  • A patient in a nursing home receiving skilled nursing care, OR
  • Receiving Social Security Disability Insurance, OR
  • Receiving Supplemental Security Income

 

 

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Berta.. 

This is the decision where I was awarded 100% for depression (a single 100% rating).  

   I dont have a lot of software, but I will post, word for word, the SMP Portion:

5. Entitlement to special monthly pension based on Housebound.

While not specifically claimed or appealed by the veteran, de novo review of the

evidence in connection with his Notice of Disagreement shows entitlement to special

monthly pension based on Housebound.

Entitlement to special monthly pension based on Housebound is granted where the

veteran has a single disability evaluated at 100 percent and has other disabilities that can

be independently evaluated at a separate 60 percent evaluation; or when the evidence

shows the veteran is Housebound "in-fact."

The veteran meets the criteria for special monthly pension based on Housebound as of

September 25,2007, the date his VA treatment reports show he began use of a CPAP

machine for treatment of his nonservice connected sleep apnea (warranting a 50 percent

evaluation for pension purposes) as the veteran has a single disability evaluated at 100

percent disabling as of his date (i.e., his service connected depression) and his other

service connected and nonservice connected disabilities (including his nonservice

connected sleep apnea) combine to an independent separate evaluation of 60 percent.

Therefore, entitlement to special monthly pension based on Housebound is granted,

effective September 25,2007.

Please Note: While service connected disabilities and nonservice connected disabilities

may be used in determining entitlement to special monthly pension, only service

connected disabilities may be uses in determining entitlement to special monthly

compensation.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief

contains the regulations of the Department of Veterans Affairs which govern entitlement

to all veteran benefits. For additional information regarding applicable laws and

regulations, please consult your local library, or visit us at our web site, www.va.gov.

end of decision quote.  

Edited by broncovet
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By the way, my original application in 2002 was for Service connected hearing loss.  It was denied in fall of 02.  I appealed, and the Board agreed with me, in 2004, and awarded a "complete grant of benefit sought".  

In January, 2004, my doctor had advised applying for NSC Pension, explaining that is easier to get and I may not become homeless if I at least have pension while my SC is being processed.

As the doc said, I did apply for pension in Jan. 2004.  NSC Pension was awarded in 2005. The 2005 Ro decision states:

 

The Veteran's intial claim for SC for bilateral hearing loss was denied by the rating

dated xx-xx2002. The BVA granted the Veterans appeal in their decision dated

xx-xx 2004. The rating decision dated xxx 2004 implemented (I dispute that

it was implemented properly.) the BVA decision and established service connection for

bilateral hearing loss as 0 percent disabling, based on findings of a xxxx 2002 VA

Audio examination effectice xx xxx 2002, the date of receipt of the Veterans

initial claim.

In his statement dated xx xx 2004 the veteran claimed sc for depression secondary to

hearing loss.

The Veteran's stmt dated xx 2004 amounts to a claim for increased (compensable)

evaluation for hearing loss. In this statement the Vetaran also claimed SC for tinnitus,

and entitlement to NSC pension benefits. He indicated he as not worked since April

2003 and has not been able to fined employment despite his multiple attempts.

The Veteran contends that his hearing loss and depression prevent him from securing

employment.

 

Entitlemeent to a permanet and total evaluation for NSC pension purposes.

A rating of P and T disability will be assigne to Veterans who are basically eligible and

who are unable to secure and follow a SGE by reason of a disability which is likely

to be permanent. P and T disability for pension purposes is held to exist when the veteran is,

in the judgement o the rating agency, unable to secure of follow a SGE as the result of such

disability(ies). If there is only one disability it must be rated at 60 percent or more If there

are 2 or more disabilites, at least one must be rated at 40% or more with additional disabilities

to result in a combine evaluation of 70% or more.

 

The Vetean does nto meet the schedular requirements of a single disability ratable at 60

percent or more, or 2 or more combining t 70% with at least one ratable at

40%. However consideraing other factors including the nature of his disability, employment

history, eduational and vocational attainment, it is concluded thatn an extraschedular entitlement

to nsc pension is warranted subject to approval by the Adjuticaion officer. The Veteran is unemployed

and has housing difficulties.

As such entintleme to a p and t evaluation for nsc pension is established pending approval by adjutication officer effective xx—xx 05 date of recipt of the veterans claim for pension.

 

This decision is a determintaion as to the veterans entitlement to a total rating for nsc pension purposes.

end of 2005 decision quote. 

 

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If there is a CUE I think it lies within this statement, which seems to indicate either those ratings were wrong based on medical evidence they has and did not consider or that  the ratings were correct.:

"The Vetean does nto meet the schedular requirements of a single disability ratable at 60

percent or more, or 2 or more combining t 70% with at least one ratable at

40%. "

But the decision adds:

"This decision is a determintaion as to the veterans entitlement to a total rating for nsc pension purposes."

Did you receive SSDI then Broncovet?

And./or did Voc Rehab , prior to that decision, find Voc Rehab unfeasible for you?

 

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