Possible CUE win?

[SPO]

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 October 21, 2016 by SPO

[SPO]

Not sure I follow.   You mean been because the sc condition didn't have the same name as the current condition as diagnosed by a civilian dermatologist.  As far as I can tell they looked at treatment for psoriasis in the initial decision even though the that's not what the sc condition was called.

Edited November 6, 2016 by SPO

[Berta]

I was just thinking to myself ,when I posted this the other day...I didnt want to forget the following point, but it all depends on the decision you get.....

if there is a change in diagnosis  and the new decision could render an analogous DC, (diagnostic code)my point was- there is always the potential to file a CUE claim, if the condition had a 10% or more rating in a past decision, but also was deemed NSC at that time, which could subsequently become SC.

Since posting that ,I  have searched the BVA  web site and have not found a successful CUE on an analogous rating but then again I had a successful CUE where the VA never even gave a rating. ( AO IHD death claim) so an analogous rating, just like no rating , where one was justified by the evidence they had,  in my opinion could involve CUE potential.

If you can scan and attach the decision (cover C file number prior to scanning it) when you get it,

it might reveal the CUE possibility on the older decision.We would need to see the Reasons for the past decision as well.

The key word is analogous ......

 

 

[Berta]

just to add I found this case decision at the US CAVC:

http://www.uscourts.cavc.gov/documents/Hudgens13-0370.pdf

CUE filed due to analogous rating...remanded by the court....I have no idea how that turned out.

The lawyer on the brief would know.

It shows that a CUE claim Can involve an analogous rating.

The decision you get well be correct and not involve any additional potential for CUE.

If we do see the potential.....and I would like input from others here...I would be willing to call the above vet's lawyer to see how the veteran made out on the court remand.

His CAVC lawyer  was

Contact Thomas E. Andrews, III (803) 748-1292

 

[SPO]

Just a quick update,  my claim is still in preparation for decision.  I did talk to my VSO the other day and he said he did find the medical release form I signed for them to go get my dermatology records, but still no actual medical records.

[SPO]

Sounds like a big win coming! Spoke to DAV today the proposed decision is a win on the CUE. 10% increased 30% for psoriasis back to December 2009 it will increase my overall from that time from 30% to 50%. Also an increase to 60% effective October this year!  With an overall of 70%!

[Berta]

FANTASTIC!

SPO, I have been seeing more and more successful CUEs here in the past few years.

Fortunately you had a very good and supportive vet rep and you yourself were willing to fully understand what CUE is all about!

I will be anxious to see more of the decision.... when it comes....

the 60% , effective October 2016.......does that seem to be the right retro date for that claim too???

CUE claims are not that hard to succeed in, but they often mean the veteran has to really think about the exact legal error the VA made.(or errors) because if they make one legal error they might go on to make many more in the same decision, as I experienced in my SMC CUEs.

And if a valid CUE is not challenged, it will remain detrimental to the veteran as long as they are a claimant.

I am glad you did not have to go the BVA route on this and I sure didnt think you would need to but even at the BVA I see more and more CUE claims these days.Some are dismissed and deemed non prejudicial to the veteran.....meaning the veteran still can file another CUE ,but must word it differently and specifically hone in the legal error they made.That can involve a lot of reading and thinking but,in my opinion, most CUEs are easy to spot when any claimant takes the time to really study their decisions.

Knowledge is Power, as our motto correctly states here at hadit.

Congratulations!

PS, VA often does not admit outright that they made a legal error raising to CUE in any CUE award but if they award the CUE, they pay the CUE retro, so they don't have to admit they didn't do the claim right in the first place.

Yippee! Another CUE Winner folks!