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CUE or NOD

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AgentOrangeWife

Question

Hello,

FIrst time post:

Can anyone tell me if a rating reduction (from 100 to 60% for a service-connected disability) done without a reexamination is a CUE or a NOD? Less than 5-years rated. Here is a BVA case which parallels my husbands exact situation (citation 1428283).

Thanks for this really helpful website!!

A/O Wife

Edited by AgentOrangeWife
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<<<Don't let filing Appeals interfere with filing additional SC Claims, big costly mistake.>>>

Yes and no. If your claim(s) have been certified and a VA 8 issued, then what Gastone offers is good advice. On the other hand, if you have a NOD or VA 9 filed on a claim or claims, and you suddenly add new claims to the mix, the RO will develop all the claims together and certify them at one time together. This can result in 2014 claim(s) being "held back" until the newer 2016 claim(s) are developed to appeal status. They then package the whole enchilada up and affix the VA 8 to the combined appeal. The BVA does likewise. Occasionally, they'll remand a claim back to correct a deficiency or ask for a new c&p exam. The rest of the appeal sits on hold until the remand is complete and they adjudicate it all in one bundle. You can force them to do it by asking for a waiver of review in the first instance and requesting an up or down decision on the pending unremanded claims. Sometimes they listen and do it. Sometimes not.

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On 3/14/2017 at 7:33 AM, Gastone said:

You say "Decision Letter," but wasn't it actually an RO Letter of "Intent to Reduce Rating?"

Nope - never got 60 days notice, just got the reduction.

Could you post a redacted copy of the "Reduction Letter?" (will try)

It was a staged rating letter: went from 10 to 100 to 60 all in one letter. No 60-days warning.

What options were you given for disputing the "Intent to Reduce?"

No intent - it was just a reduction. VSO said to file an NOD but I think a CUE is the way I will go. Following Berta's "VA CUE themselves" and then following up with an NOD shortly after they receive the CUE.

 

 

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On 3/17/2017 at 0:27 PM, asknod said:

<<<Don't let filing Appeals interfere with filing additional SC Claims, big costly mistake.>>>

Yes and no. If your claim(s) have been certified and a VA 8 issued, then what Gastone offers is good advice. On the other hand, if you have a NOD or VA 9 filed on a claim or claims, and you suddenly add new claims to the mix, the RO will develop all the claims together and certify them at one time together. This can result in 2014 claim(s) being "held back" until the newer 2016 claim(s) are developed to appeal status. They then package the whole enchilada up and affix the VA 8 to the combined appeal. The BVA does likewise. Occasionally, they'll remand a claim back to correct a deficiency or ask for a new c&p exam. The rest of the appeal sits on hold until the remand is complete and they adjudicate it all in one bundle. You can force them to do it by asking for a waiver of review in the first instance and requesting an up or down decision on the pending unremanded claims. Sometimes they listen and do it. Sometimes not.

I realize after reading your helpful replies that I really know-almost-nothing about the advanced post-decision and appeal process. I'm still at the CUE level and am carefully watching the NOD clock. This claim has so many CUE's that it would surely get remanded. I honestly think the rater was pissed at me because it is was such a sloppy decision. I will keep your info in mind to help with planning CUE's with the appeal in mind.

There should be a community college degree program: you know - maybe even a "BS" in VA Claims Advocacy. (my sense of humor).

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In march I replied to you:

"Something is wrong here.

I am rethinking my advice above on the CUE.

We don't have enough info.

Did an actual Proposal to Reduce letter come prior to their December 2016 decision?

The letter would have given 60 days for a response.Most vets here who have gotten those letters have requested a hearing. Any vet who gets a reduction proposal has to act fast.

We need to see their decision and the evidence list.

I am in a major snow storm and might lose internet today or tomorrow due to the weather,if the snow packs into my sat dish.

Others can help here as well.

 Something is missing here....."

Then I added after going over the posts again :

"I dont see this as having a CUE basis.

I suggest that your husband get a IME from an non VA cardiogist to see if they did give the wrong rating.

I dont know how long ago the 10% rating was awarded but the IME doctor might well want to look at those medical records  that rating was based on

Heart disease ratings had changed when VA awarded my AO IHD death claim.

They had to use rating from 1988 to 1994 to determine the percent.And then they combined that with his PTSD rating. I dont know what ratings they used for the original 10%.

It was a lot of work on my part because he had never been diagnosed or treated for IHD.I won a wrongful death claim and the IHD was part of that but still I had to find  enough evidence of IHD back to 1988, abnormal EKGs and ECHO etc within his medical records.

It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision.

Others will chime in.We have other AO IHD vets here.

I now think the VA refused to reconsider because they did not have any additional evidence to cause a reconsideration."

This was not a proposed reduction.

The only possibility I see for CUE is this factor, (and was  how I won my AO IHD claim) as VA gave No rating whatsoever for my husband's IHD in a 1998 Sec 1151 award letter , that stated his IHD was malpracticed on and contributed to his death:

"It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision."

If the drop in his compensation is wrong ,by comparing his established medical evidence to the VA SRD,this might take an IME from a non VA cardio doc, to support a higher rating.

The IME would be new evidence and could not be part of a CUE,but would cause the VA to reconsider, if submitting asking for that- or with a NOD on the Recon request they denied already.

Reconsideration requests do Not stop the NOD clock.

 

 

 

 

Edited by Berta
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9 minutes ago, Berta said:

"Did an actual Proposal to Reduce letter come prior to their December 2016 decision?"

Berta after your(& others) March replies, I researched this and there was no Proposal-to-Reduce letter. There was only the decision letter. VSO said due process was violated. I've read your posts(&others) and now understand the 60-day notice was required.

=====

"I suggest that your husband get a IME from an non VA cardiogist to see if they did give the wrong rating."

Yes, we started this process and this is how we found an unadjudicated symptom which is specified in 7005 from the original claim.

=====

"It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision."

Yes, sorry about the confusion, we have several layers of claims and CUE's here. In my first post I was looking at the Dec 2016 decision. Now, I've gone back to the original claim and am working forward.

=====

"This was not a proposed reduction."

Confirm - it was not a reduction of a "current payment" - it was staged ratings. I finally figured that bit out.

=====

"It is possible the past 10% decision contained CUE if that rating did not comply with the VA SRD at that time,This is not what I originally thought it was about...thanks for posting the decision."

Yay! Thanks for steering me in this direction. You were spot on.

 

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Berta and I need to take a class in prescience. For the record, if you got a 10>100<60% in one rating, what you have is an increase from 10 to 100 as a temporary rating and then 60 as a permanent (for now)  rating. That is, technically, a Fenderson Staged rating but not quite. A true Fenderson would be a retroactive grant either via a CUE correction or a 3.156(c) decision. This would generate a gradual increase over a number of years based on available medrecs from the contemporary time involved. Any time you see a 10 go to 100 and back to 60% with no proposed reduction  is due to a filing you sent in. Did you ask for an increase due to a surgery? Temporary total 100% schedulars are handed out, on average, for 3 months- maybe six if the injury is slow in healing. The follow on rating you perceive as a reduction from 100 to 60% is based on the residual medical evidence of disability. A proposal to reduce always allows a 60-day window for response. No proposal to reduce would ever be preceeded by a temp. total increase to 100%.

It helps to include as much evidence as possible for us to ascertain what it is you are trying to comprehend. Perhaps a description of what the 10% was for would help. Timelines are very helpful also. As for a CUE, there can be no true "CUE" if the decision is less than a year old and not final yet. You have 365 days to file a NOD with a decision. VBMS only recognizes three things these days in Benefits land- The 526 EZ, the 21-0958 NOD and the VA 9. DBQs are recognized but that is a medical issue. 21-4138s float around in virtual space now. I had one client's from Oakland end up in Atlanta for a filing. DAV used  the 4138 instead of a 526. The computer didn't know what to do. So, if you get a screwy decision, you file a NOD. There is no "reconsideration" mode or form. VSOs claim there is but all they do is refile for the reconsideration on a 526 and begin a new claim. You lose your earlier filing date this way. If you find an error on a decision from three years ago you never appealed, then you file for CUE. CUE is technically only for final claims. It is used loosely here to mean error at any point of the claim but an active claim cannot contain CUE but rather errors that have yet to be pointed out to the ignorant asshat doing the claim. You use the 21-0958 for that. Period.

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