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.
Question
Berta
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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Vync
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 ver
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