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Berta

'Lack of Rating' CUE claims

Question

I almost forgot and went back to my 2004 CUE for heart disease because I forgot what regs I used.

 

"M21-1, Part VI         March 19, 2004 M21-1, Part VI         March 19, 2004

Change 113 

      Rescission:  Changes 106 and 108. 

 

3.09  ISSUE 

      a.  General.  Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim.  If there is more than one issue, list the issues by number.  In RBA, the issues appear under the identifier “ISSUE.”  In RBA 2000, the issues appear under the identifier “DECISION.” 

      b.  Compensation Ratings.  Consider all claimed disabilities in the rating decision.  Also consider all chronic disabilities found in the service records even if they were not claimed.  This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision.  Do not consider any of the following conditions unless specifically claimed: 

      (1)  Acute and transitory disorders without residual disability; 

      (2)  Noncompensable residual disability from venereal disease; 

      (3)  Disabilities noted only on an induction examination, or disorders recorded by history only; 

      (4)  Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and 

      (5)  Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection. "

My actual 2004 CUE claim which I finally found was very short:

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

.

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.”

I had to support that above statement with the M21-1 excerpt above, and a re- send of the VA OGC malpractice report.This was a claim that stemmed from my husband's 1151 claim, that he wanted me to continue if they killed him and he had mentioned potential heart disease in his 1151 claim, because we were aware of some of the stroke malpractice at that time and he figured if they couldn't even diagnose his stroke after weeks of hospitalization for an "inner ear infection" (which he didnt have at all,) could not walk, talk well, couldn't eat or drink, couldnt swallow, and could not move his eyes normally, they probably buggered up something else too. He was right..

 

I hope someone here has the time to check out this regulation in M21-1MR and see if their have been any changes to it since 2004.

It was the controlling regulation at time of the CUE in filed in 2004.

CUES depend on dates of regulations in place at time of the alleged CUE.

 

 

  

 

 

 

 

 

 

 

 

 

 

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Berta,
That is good info. According to the VA's web site, Part VI has been rescinded (http://www.benefits.va.gov/warms/m21_1.asp). I wish the VA make things easier by including links to previous versions.

A lot of that reg reminds me of the first denials I received from the VA in 1995. I was denied an initial C&P exam because the rater reviewed my STR's and didn't find the word "chronic" mentioned for some conditions.

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Thanks Vync...I will try to find something updated for this vet to use...

Then again the older versions of M21-1MR can control appeals for EEDs and CUEs favorably sometimes.

In 1995 much of this stuff was not even on the internet.

Luckily when I was on Prodigy Vets BBS ( late 80's or early 90s,) one of our members was a former BVA lawyer, helping many vets ...William Smith..and our long term member  Pete 53 here remembers him I am sure

I dont know how some of us claimants got anywhere at all with our claims prior to what the internet is today.

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Berta - you are so right, it was slim pickens in 1994 on the internet.

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In 1988 it  worse......no 'internet' but we had direct  modem to modem with Vet Link, with a few links all over the USA  and had ...a small orange screen PC that weighed about 100 pounds he he...One night my husband found an Australian Vietnam PTSD vet on line and they talked for quite some time.My phone bill was over 400 hundred bucks!

He said it was better PTSD therapy than what he had gotten from VA so far.

But I feel the VA is top notch in PTSD these days. And maybe even the VA MH diagnosis requirement since 2010 is actually a good thing.

THANK YOU Tbird.....what would we do without Hadit!

 

 

 

Edited by Berta
sleet and snow....

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2 hours ago, Berta said:

Thanks Vync...I will try to find something updated for this vet to use...

Then again the older versions of M21-1MR can control appeals for EEDs and CUEs favorably sometimes.

In 1995 much of this stuff was not even on the internet.

Luckily when I was on Prodigy Vets BBS ( late 80's or early 90s,) one of our members was a former BVA lawyer, helping many vets ...William Smith..and our long term member  Pete 53 here remembers him I am sure

I dont know how some of us claimants got anywhere at all with our claims prior to what the internet is today.

You're right!

It is a miracle I won any claims back then. I put all my faith in a state/county VSO because they knew a lot more about it than I did, but they put forth minimal effort. My original claims consisted of one to two sentences. I asked about going into detail, but was told that was the job of people at the VARO. Even today, things have not changed a whole lot. We have a local state/county VSO who is lauded as being one of the best out there. However, with my claims I received about the exact same minimalist effort. If not for ignoring my local VSO, and for learning from Hadit, I'd still have my initial rating.

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