Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Available Subscriptions

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Searches Community Forums, Blog and more

  • 0
SPO

Possible CUE win?

Question

So after some prompting from some friends I got an appointment with the DAV to look at what I thought would just be a new claim to ask for in increase on my psoriasis claim (10%).  After the DAV reviewed my records, including my C-file it looked like the VA had ignored some evidence that would have given me 30-60% rating for psoriasis, which is based on the use of immunosuppresive medication.  We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them.  No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.)  Also I believe that the VA did not fulfill its duty to assist in accordance with federal regulation under title 38 CFR 3.159, which states they must provide notice as to the identity of the records they cannot obtain, as well as what efforts they have made to obtain them.  No letter of that type exists in my file.  The only letter is a generic letter asking if there is anymore evidence I would like to provide (no specifics included). 

Using these medications for 6 weeks or more in the last 12 months (at the time the application was filed) can lead to a 30% or 60% rating.   My decision noted other items to justify the 10% but did not mention the immunosuppresives in the paragraph that tell you why you got that rating. The DAV reps submitted a CUE for me, so if we are right I should be back dated to December, 2009. It could possibly take me from a 30% overall rating to 50-70% overall depending on which criteria they think i meet.  Any else seem like this should be one for the veteran win column?

Edited by SPO

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

 "No where in my C&P exam did it state the I told them I was on that medication, but in my decision letter the cited the use of immunosuppresive medication to treat the condition (information only available through my private doctors records.)  " Hmmmmm

Can you scan and attach here the rating decision as their Reason and Basis in the older decision being Cued? (Cover C file # and name prior to scanning it.

When you stated" cited the use of" ,do you mean they accepted that you ,specifically, were taking the immunosuppresive meds?

" We couldn't find a copy of my civilian dermatologist medical records in the file, but we did find where I provided them with the information to locate the records and a note asking them to retrieve them. "

Did you sign an authorization form for those records? Was that form in the C file?

Duty to Assist is not a basis for CUE but I think you do have a strong basis here for the CUE.

It is possible they made no attempt to get the civilian records, or they did get them and ignored them,except for the 'use of" the meds part.

I have been successful under CUE using 38 CFR 4.1 et al...specifically 4.6:

It is in this post:

http://community.hadit.com/topic/60717-the-power-of-38-cfr-46/#comment-361243

 

Share this post


Link to post
Share on other sites

Ad

  • 0

They made the statement was "you were treated with topical creams and humira ."   humira is an immunosuppressive drug. We couldn't find the medical records, a release or evidence of the va trying to get them.

Share this post


Link to post
Share on other sites
  • 0

Also I just got a copy of what the DAV submitted. They said that it should be a minimum of 30%.  Will the va consider the 60% level still?   I was on the meds for 13 weeks at the time of my claim. 

constant or near-constant systemic therapy such as corticosteroids or other immunosuppresse drugs required during the past 12-month period60%

Share this post


Link to post
Share on other sites
  • 0

That means the VA conceded that you had 'established medical evidence in their possession' at time of the decision, that confirms the use of the immunosuppressive drug. And that they did not consider that medical fact  in the decision.

I sure hope the DAV honed in on that in their CUE That falls under violation of 38 CFR 4.6.

It is 99% possible that the rater did not know what humira was.

I wish we could read their decision and see the CUE the DAV wrote.

Was the CUE claim sent to the last person who worked on the claim?

I always put  Attention to:, and then initials in the alphanumeric on the right hand top of their decisions for CUEs I filed , because the alpha is the initials of the last person who worked on your claim.

It is also quite possible that they failed to give the C & P examiner the proper information because it appears that they certainly had the private medical info but those records  have mysteriously disappeared.

I have been the victim of the Buffalo RO  MF many times-the MF 'mysterious force that removes probative evidence from  C files) and then might put it back years later.

I had that all well documented in House VAC testimony I gave years ago during Shreddergate.53 USPS tracking slips.Evidence they refused to even acknowledge. When they did I won those claims.

I bet this happens much more then we know and vets do not realize what is missing from the evidence they can prove they sent to the RO. They need to pour over the evidence list and carefully read the VA rhetoric.

VA might even list it as evidence but then fail to mention it. And it might be the best evidence they have.

Did the DAV send them a print out of this med ,as evidence for the CUE claim, and what it is for and why the word "humira" in their decision supports the claim for higher rating?

 

Would your civilian dermatologist still possibly have anything from VA requesting those records?

But then again, it looks to me that they did have them to make the statement on the humira. That is very important to this CUE because every CUE must rest on legal error in any decision in which the medical evidence has been established and is ( or was if they lost it) in their possession ,when they made the cued decision, as their 

'humira' statement proves it was.:rolleyes:

When was this decision made.....is the DAV cueing a past decision that was unappealed or going after them with a CUE within the appeal period?

(which wont stop the NOD clock but can get fast results sometimes)

Both ways have worked for me. And I do believe this is a very valid CUE.

 

Edited by Berta
  • Like 1

Share this post


Link to post
Share on other sites
  • 0

I think the claim was just submitted online. They didn't quote any regulations in the cue. But they did quote the decision letter where it mentions humira.  No print out for what humira is but they did write a brief explanation of what it is themselves. It is past the appeal period.  It's been about 8 years.  I tried to upload a picture of the cue letter but it keeps getting an error.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

       
      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 1 reply
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 
×

Important Information

{terms] and Guidelines