CUE process

[killab2068]

When or where in the process of submitting or filing a "cue" in ebennefits do you designate the FDC as a "cue"? 

[Berta]

PS, check our SPOs winning CUE here and I think we have another

http://community.hadit.com/topic/68269-possible-cue-win/

.SPO had a psoriasis CUE but similar to yours I think. 

[killab2068]

Berta, here is my "cue" statement. please advise for corrections, additions, or deletions.

To: Columbia, SC VA Regional Office  

This is a claim of CUE, Clear and Unmistakable Error, under provisions of 38 USC 5109(a).  I respectfully request the VA to call a clear and unmistakable error on part of the 07/17/2015 decision from the Columbia, SC VARO and to correct it.  I state that the VA failed to apply the basic concepts and evidentiary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, Evaluation of evidence thus:                                                                                                                                                 “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

In the Decision Letter dated July 17, 2015 (enclosure #1), I was granted an increase to 60 percent effective March 16, 2011.  The 60 percent evaluation was assign based on “near-constant systemic therapy required during the past 12-month period”.   The effective date of March 16, 2011 derived from the DBQ completed on April 10, 2015 as explained in the decision letter.

Diagnostic Code 7806 38 C.F.R. § 4.118 , A 60 percent rating is warranted ; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period.

The DBQ completed April 7, 2015 documented systemic therapy with oral medication 6 weeks or more during the past 12 month period beginning October 1, 2009.                                                                                                                       Diagnostic Code 7806 38 C.F.R. § 4.118, A 30 percent rating is warranted if systemic therapy such as corticosteroids or other immunosuppressive drugs  were required for a total duration of six weeks or more, but not constantly, during the past 12-month. 

The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision dated July 17, 2015.

 The effective date of the service connected skin disease was compensable on October 1, 2009 and would have increased the rating from 0 to 30 percent beginning 10/1/2009 to 03/16/2011.

[allansc2005]

killab,

While we are waiting on Berta(she wrote a winning CUE template for me), you might consider spelling out such things as "DBQ, VA..." in the first part of your letter, then abbreviate them later on.

Also, it doesn't look like you clearly ended your letter with 1. How the VA's decision affected the outcome, i.e.; your percentage and amount of money you received were affected, and 2. Close your letter with what you expect the VA to do about the CUE.

By the way, I won my CUE and Permanent IU at the Columbia, SC office back in January.

Hope this helps my fellow veteran.

Allan

 

 

 

[Berta]

It is very well written and Allan made some good points.

"The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision dated July 17, 2015."

Did the DBQ doctor refer specifically to medical evidence the VA had from October 2009 to March 2011?

 "The effective date of the service connected skin disease was compensable on October 1, 2009 and would have increased the rating from 0 to 30 percent beginning 10/1/2009 to 03/16/2011."

I think I am stuck on this:

I submitted 2 DBQs as evidence but only 1 was used to establish effective date of compensation."

When did you submit the DBQ for the 2009 date of entitlement? Are you 100% sure they received it?

I would refer to it and enclose it again with the CUE and any proof of mailing you have, that you sent it ( or that they received it) 

In a CUE I have not sent in yet ( had to get more PC ink and paper)

I am referring to and attaching all of the evidence they ignored -evidence that the VA itself confirmed they had ,by a phone call to me, but never considered it (AGAIN third time) for my past issue that contains CUE.

I get angry every time I think of it,because VA has done this to me many times since 1995.In my testimony to the H VAC during Shreddergate I enclosed 53 tracking slips from USPS of evidence they had on many issues, but chose to completely ignore and that included 2 costly IMOs from Dr. Bash in 2005.

I mentioned this in my recent letter to the VA Secretary, as a personal example of why my suggestion for a Fast Letter regarding CUE is valid but I made the point that I am not the sole claimant affected by RO's nationwide who ignore our probative evidence, in order to quickly deny the claim, as I have seen this as a veteran's advocate for years.

You and Allan here and SPO and others here with successful CUEs knew something was wrong in their decisions and hopefully some sort of Fast letter or directive will promptly cause all claimants and their VSOs, and reps to seek CUE immediately in the first decision they get...award or denial because if not CUed right away those errors will follow the claim ad finitum and maybe the BVA will catch the CUE error but that will cause a remand.

Many remands based on VA decisions obviously could have been CUED long before the claim got to the BVA.BVA can't call CUE on a RO, they are forced to remand for a Re- do...of what the RO should have done in the first place.... as our Nation's debt of gratitude remains long overdue, and veterans often die,as my husband did,  before the RO properly decides their claims.The VARO could have resolved one of his pending claims, with receipt of his SSDI records. Even though his signed authorization form was in the C file, they Never attempted to get them in his lifetime.

I regret I sound so angry ....and I am... because I think maybe I am just pissing in the wind, thinking we have someone willing to reform the VA and that he, Shulkin, will actually consider my suggestions, and reform VA in many ways, the job Sec Shulkin was hired to do.But if VA does reform, it wont be because of some isolated widow like me, it will be because of veterans themselves,sick and tired of the crap we put up with, who are willing to take a stand and let the Secretary and the President know how many of us suffer from downright RO incompetence,due to well paid RO employees, which continues to make the backlog grow.

 

 

 

 

 

 

 

 

 

 

Edited February 28, 2017 by Berta

[killab2068]

The 2009 DBQ was submitted at the same time as the one used in the decision letter.  It is also referenced in the decision letter on the list of evidence.    

[Berta]

"It is also referenced in the decision letter on the list of evidence.   "

So they sure had it but never considered it....or commented on it at all?

 

As long as the DBQ doc based the earlier EED on  VA med recs he/she referred to in some way in the DBQ, that is probative evidence they should have considered.

Was this DBQ done by a VA doctor or a non VA doctor?

Who did the DBQ they used..... if their name is on it ,have you googled their name to see what their credentials are? Maybe they have no medical expertise at all in this type of claim.

It is definitely a CUE if the favorable IMO/IME was prepared with the IMO/.IME criteria here at hadit, to include a full medical rationale.A full medical rationale can be brief but needs to support the better EED from the established specific VA medical records.(which you could copy and send in with the CUE yourself as the records that the DBQ doc depended on.

We are not dealing with people who get it right off the bat .They often need it all spelled out for them.