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2NDMARDIVDOC

DEFERRED QUESTION

Question

So I find out today that my claim has a deferred item. I filed for a bladder condition and shoulder condition. My shoulder was granted 20% and my bladder issue was deferred. I really don't understand that. I submitted a ton of evidence as well as 2 nexus letters from 2 different doctors. My bladder CP exam was very much in my favor. The examiner also opined that the bladder was service connected. The only hiccup is that the bladder claim was filed as a reopen / CUE from a denial back in 02. Could a large retro be holding it up? Any thoughts? 

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Your guess is as good as ours, as you know your medical/claims history MUCH MUCH better than we do.  

Leroy Macklem, however, would suggest that not to be the case as the Extrordinary Awards Program (delays for retro over 25 grand) was found to be CUE.  This does not mean that VA did/does not do it anyway, however, they just dont advertise it.    

http://thomasandrewslaw.blogspot.com/2010/08/macklem-eap-equals-cue.html

More likely:  There is "an issue" with your deferred claim.  Of course I dont know what that issue is.  

Chances are likely that "some" of the evidence you thought you had went AWOL, that is, missing.  That is all pure speculation, tho.  

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As I recall you had what appeared to be a very valid CUE claim basis on the bladder condition.

http://community.hadit.com/topic/68639-is-this-a-cue/

I certainly feel that is what they deferred.

"The only hiccup is that the bladder claim was filed as a reopen / CUE from a denial back in 02 "

Re -opens are different from CUEs but if you laid out the CUE well (there are plenty of CUE templates here)

I would think they would get it and "defered " in this case could mean they need time to do a retro rating.

We had a former member who questioned some of us as to our CUE awards.

Sometimes VA will admit they made a CUE, or sometimes they will state the award differently.

I gave an example of my last CUE here the other day.

VA had denied the claim on March 4, 2015. I filed a CUE Yourself claim via email ASAP March 6th and March 7th,listed as evidence.

VA awarded the claim on April 2, 2015 stating:

"We received a request to reopen a previous claim on March 27,2015."

I think the VA is characterizing CUE claims as 're opens', when they are awarded so they do not appear as CUE claims due to VA errors.

My SMC CUE was identified as CUE  in my Nehmer decision when they awarded it.And not a 're open'.

And when the NY VISN  regional counsel called CUE on them in my behalf many years ago( I didnt even know he did this) they clearly stated his request was for CUE and they sent me the cash. A five figure payment.The amount was wrong and they sent me more money when I called their attention to it.I knew they had erred but had been trying to get that corrected administratively without filing CUE. A subsequent claim I filed is how the RC got involved.

My point is if your CUE was stated as within the CUE criteria as in many templates here, it does not really matter what they call the claim if they award.

But still it has been bothering me however that they use 're open ' sometimes so they don't have to admit they made a CUE in the award letter.I think all of my CUEs except the RC one were violations of 38 CFR 4.6 CUE-the most important regulation we have.My pending CUE is as well.

They probably dont want anything on the books to show their violations of this important reg because by violating it, their job is easy....they can deny right off the bat without even considering probative evidence. and if we dont raise hell right away, we would be out of the RO hair and waiting a long time for a BVA decision.( worse yet...VA told me many years ago my SMC CUE was with a ' specialist', and remained with the specialist for years.(that claim filed in 2004 took until 2012 to be awarded-by a different VARO)and I realized as some point the RO was waiting for me to kick the bucket. There was no 'specialist'.

The Nehmer VARO had no problems at all awarding it. They had read the evidence.

The BVA however if they award a CUE have no problems calling it what it is.

Lets face it -if a VARO shows on the books they awarded 150 re-opens in 2016  instead of saying they awarded 100 re opens and 50 CUE claims, that would show they erred in applying proper VA case law to 50 of those claimants and/or violated 38 CFR 4.6- application of which, is exactly what they are paid to do.

 

 

 

 

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forgot to add... maybe even deferred for a Fenderson rating, if it was at a ratable level in the denial you CUED.'Fendersons' are explained here under a search .

forgot to mention also -where my RO got the March 27th 2015 "re open" date

for the CUE I mentioned above....is no where in the decision but they did add the whole 38 CFR 4.6 I cued them on.

I think maybe by March 27th,2015 they managed to become  literate enough to read the regulations and also my sole piece of Probative evidence.

The EED they awarded for my dead husband' s HBP 1151, was Aug 9 ,1992. 

The CUE was in a 1998 decision.

 

Edited by Berta

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Thanks Berta. I looked further into the deferred item and on ebenefits there is a tab that says "needed from others" I clicked on it and all it says <VA medical center> That's it, nothing else.... The laughable part is that below that, it says that I can provide the requested documents to speed the process up..... There is NOTHING that shows what they are even asking for? How can I provide something when they aren't saying what it is??? All that's there is <VA medical center> I've already had a C&P exam which like I said was very much in my favor and 2 nexus letters from different Doctors stating it was present in my active duty and military medical records to prove it. Im totally lost as to what they could be asking for in addition to what I've already submitted??

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