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CUE

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Djbmo

Question

Is it considered a clear and unmistakeable error if the VA did not rate my claim under gulf war multi-symptoms. I filed a claim using the 5126-ez form because the VA had started reviewing my previous claim from 1994 for increases. So when I saw my contention statement and it did not reflect my intentions to file as presumptive gulf war illness, I filed a statement of claim and stated that I wanted my claim to be rated as gulf war veteran and sent copies of medical evidence and lay evidence but the VA never changed my contention statement. I contacted VA 1800-827-1000 and spoke with a rep. who said my statement of claim was sufficient to have me rated as gulf war veteran with multi-symptoms. They never changed it. They decided my claim and only addressed the issues they were already in the process of seeing if I was still disabled for the claim I did in 1994. The VA rated my claim and tried to tell me it was for gulf war. But when I got my C-FILE I noticed that the Gulf war exam they scheduled me for, which was 4 hrs long, stated that this is a follow up for your own sake and has no bearing on my claim and that my claim was at the raters already. So the exam was bogus and they denied all my symptoms reported that I asked to be listed as gulf war veteran who served in the theater of operations not to be listed as individual illnesss under new, reopen, and increase. So when I got the rating decision I went to see a VRO and he suggested I do a NOD. He submitted it without my approval. Because I knew a NOD was not what would correct the issue, so I sent copies of my numerous request to have my contention statement to reflect Gulf War multi with symptoms..... with a CUE statement stating they made an error when they did not rate me according the gulf war laws/regs. My claim was submitted Nov 27, 2012 and they rated me September 11, 2014 and they deffered ratings and sent another denial rating on October 24. But none of it was rated like I requested. The unaurthorized NOD was submitted by the VRO september 24, 2014. I decided, once I saw the NOD on E-benefits to file the CUE and sent a certified letter with the evidence that I previously uploaded to Ebenfits along with a CUE statement dated January 2015. I just saw that my NOD was under review but what happened to my CUE that was sent by certified mail? My question is if the VA does not rate you according to the Gulf war illness laws and you requested that it be rated that way and they failed to do so and at the same time fake a gulf war evaluation that was not even used for the decision considered an Error. Because a NOD would necessary if they rated me and I disageed with the level of the rating but if they did not rate me under the appropriate laws, considered a clear and unmistakeable error?

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"My question is if the VA does not rate you according to the Gulf war illness laws and you requested that it be rated that way and they failed to do so and at the same time fake a gulf war evaluation that was not even used for the decision considered an Error. Because a NOD would necessary if they rated me and I disageed with the level of the rating but if they did not rate me under the appropriate laws, considered a clear and unmistakeable error?"

The Gulf War Registry (as Vietnam vets know who took the AO registery years ago) is not a claim and doesn't really  support a claim.

I knew Vietnam vets decades ago who thought the Registry was a claim.As a former inhouse lawyer here (the later Alex Humphrey) agreed with me, those AO registrys were time consuming BS. I have no idea how the GW Registrys could impact on a claim. I also assume the last decision you got from VA did not defer any GW issues.

"So when I saw my contention statement and it did not reflect my intentions to file as presumptive gulf war illness, I filed a statement of claim and stated that I wanted my claim to be rated as gulf war veteran and sent copies of medical evidence and lay evidence but the VA never changed my contention statement. I contacted VA 1800-827-1000 and spoke with a rep. who said my statement of claim was sufficient to have me rated as gulf war veteran with multi-symptoms. They never changed it."

As long as you clearly stated the GW disabilities you claimed ,and have proof that you claimed them, then perhaps you would get further by emailing the director of your VARO, to try and straighten this out..

What VARO is this , I might have the director's email addy.

It might take me a while to respond...I have had problems using the site lately but if you search the director's name here maybe someone has already posted their email addy.

Does your vet org have an office in or near the RO building whereby someone from the POA might be able to find out more info for you on this?

Also you can always file an IRIS inquiry.

 

 

 

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  • HadIt.com Elder

 

My question is if the VA does not rate you according to the Gulf war illness laws and you requested that it be rated that way and they failed to do so and at the same time fake a gulf war evaluation that was not even used for the decision considered an Error. Because a NOD would necessary if they rated me and I disageed with the level of the rating but if they did not rate me under the appropriate laws, considered a clear and unmistakeable error

 

it should say on your DD-214 that you are a veteran from the GW & along with your  GW medical records they should automatically include that.

 

yes its a CUE

if you have the proof ''return sign receipt'' that the VA received it.

 

some VSO's Ain't worth a sh## & really mess up our claims.

Good Luck Buddy.

 

jmo

 

 

............Buck

Edited by Buck52
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Thank you sooo much for your input! 

I was not referring to Gulf War Registry Exam, The VA scheduled me for an exam to address my claim for compensation for Gulf War illnesses. I never got an exam for Gulf War Registry. 

I am from Colorado Springs and the Denver VARO is who decided my claim.

 

I contacted IRIS on a few occasions and they  automatically put in an "Intent to File Notice" and wanted me to submit another claim. It is listed on Ebenefits as Intent to File and I have a year to submit a new claim. They do not understand issues. I imagine.

 

I certified mailed the Cue Packet, January 15, 2015 to the Denver VARO and they have not addressed it thus far. Do you think they will honor the CUE that I sent by Certified Mail, and how long does that take?

 

The VA used the unauthorized NOD and my request for a DRO hearing and put my claim in "Under Review" Status and on Ebenefits it states DRO review but no date set for the review. Do you think I will be able to address my issues when I do get the hearing, even though they will be there to address a NOD for the claim they denied that should have been a Gulf War Claim?

Your responses are GREATLY APPRECIATED, Berta.

Mark Batiste

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I had to contact the Under Secretary, Allison Hickey for them to get my CUE claim out of their dust pile.(filed in October 2012)

They are still working on it.

Other CUE claims I filed were awarded very fast, in mere weeks.

But an SMC CUE I filed in 2003 and an  IHD CUE I filed in 2004 (both on a 1998 decision) resolved in 2012

The problem with that NOD is this...it was filed before any CUE claim, I assume in your case.Maybe I am reading this wrong.

The fact that I filed CUE prior to my NODs in above Nehmer situation, caused me to be able to get the RO to handle the CUE prior to dealing with the NOD.

Although I filed timely NODs my position was that not only did the CUE date precede the NOD date but one cannot file a proper and viable NOD on any decision that contains legal errors. The legal errors have to be resolved first.

I also put a knot in their underwear by filing for a NOD extension on that basis although the NOD was timely filed and stated I would appeal at the BVA any extension request denial.

 

Denver RO Janice Jacobs Director

303-914 5800

303 914  5805 (Fax)

No email addy from my source but try this Janice.Jacobs@ va.gov

Denver VSCM Mike Kubacki 303-914-5958

 

 

 

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The only thing that I could add is you need to remember VA rates you on SYMPTOMS, not diseases.  If you have a disease, but no symptoms, you wont get comensated for it.  

Also, lets say you were diagnosed for fibromyalgia and arthrits, and both caused joint pain, and limited movement.  You wont get paid for both!  You would get compensated for one or the other, but VA is very anal about not paying you for the same thing twice.  If your arthritis caused pain, and the fibromyalgia caused loss of range of motion, and you were SC for both, the VA wont, under ancy circumstances, compensate you for pain for the arthritis AND the pain for fibromyalgia, for the same joint.  

We see that with mental health disorders a lot.  There are several:   Depression, ptsd, mst, bipolar, schizo, etc.  Many of these have overlapping symptoms.    If you had, say PTSD, you would get compensated for ONE set of symptoms, not 4 or even 2 even if you are diagnosed with all of the above.    

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One last thought. When you allow a VSO to represent you, do not be surprised if they go behind your back without your permission. You give them a Power of Attorney but that should still entail some supervision. VSOs do not see it that way. An attorney would never do this to you without asking first. Filing a NOD immediately without some intermediary discussion is a recipe for a 2 year delay. You need to make an appointment and go in to talk to the rater with your representative. I doubt he/she will though. Perhaps that is why so many of us advocate that you do it yourself. It's scary and daunting but the results are often far better. 

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