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

[Berta]

Absolutely...try to see if Merck has info to help via google...as VA uses Merck info a lot.You can use a 21-4138 on line to use as cover letter for the CUE that your rep filed.

I sure hope these reps keep copies of what they file on line for a veteran.

I would love to see how he shaped the legal error.

If you mean on line by ebenefits---does the CUE claim show up there?

Claiming CUE depends on identifying the legal error they made...

I think you should write the CUE yourself and submit if the rep didn't define the regulation they broke.

We have many templates here for CUE in the CUE forum and it sounds like a short one pager....with the copy of the decision you are cueing and a copy of the regulation in 38 CFR 4.6 et all, specifying 4.6, filed under auspices of 38 USC 5109A, telling them what legal error they made,how it had a manifested altered outcome to you because the rating was wrong,  and  referring to the evidence, as 

Exhibit A copy of the erroneous decision, and Exhibit B, copy of the actual regulations, which I posted here again recently.And Exhibit C, a copy of the rating criteria that shows the immune drug in the rating criteria, that the humira warranted as a higher rating.

You dont have to send them 38 USC 5109A. They know what that says.

 

 

Edited October 22, 2016 by Berta

[SPO]

I have a copy of the letter they sent.  They submitted a 526ez, their letter, and my medical records. Should I write my own and submit that to?

[Berta]

If the rep did not identify the legal error they made by using the exact regulation they broke, the VA will deny it.

I have read  hundreds of CUE claims since the BVA went on line and this is often a main reason they deny them... the legal error has not been identified.

They might have made more then one legal error as well.

I suggest you read over the CUE info in our CUE forum. There are some templates there...I will try to find the one I posted recently somewhere here, and post it in this thread.

.

 

[Berta]

2 of my CUE templates are here :

http://community.hadit.com/topic/51069-requesting-the-va-to-call-cue-on-itself/

You cant use, in your case the Cue Yourself approach within the appeal period , Use the first template.

This might help more, I posted this here recently for someone else:

My Original heart Disease Cue was much shorter than this but I re wrote it for you with more info in it that shows how we have to support this type of claim. Make sure your C file # is on the letter.

 

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A.

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to his death.

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

---------------------------------------------------------------

Awarded 2012.

This can be used as a template and there are more templates here but this covers the main points:

 

Defining the exact legal error with proof from the past decision.

Stating the outcome was detrimental to you (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.

 

Checking the ratings for the year you are claiming CUE was made.

Send them a copy of the specific rating schedule if at time of the cued decision if this is a rating CUE claim.

Go over 38 USC 5107a and info here for the best way to word and present any type of CUE.

[SPO]

He didn't use the "under the auspices of" statement.  The only thing close to regulatory I can see is that he says under DC 7817 it should have been at least a 30% rating.  Is that enough or does it need more?

[Berta]

He didn't have to use the term "under the auspices of"  (I use it because I have a legal background)

but I hope he mentioned 38 USC 5109A and also the regulation the rater broke.

38 USC 5109 is what gives us the right to file this type of CUE.

He did use what I assume is the correct rating code and that was very good.

I have learned so much about CUE that I leave no stone un-turned.  I have no faith in their (VA)ability to read, and they are not required to apply common sense.

I have nothing else to offer without being able to know what he wrote.

Maybe it will be perfectly OK..it probably will be,  and maybe the VA will address it properly.

Others will chime in.