CUE or NOD

[AgentOrangeWife]

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 March 13, 2017 by AgentOrangeWife

[AgentOrangeWife]

4 hours ago, asknod said:

 

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?

No, he asked for an increase because he was deteriorating. The increase was prompted due to METs. VA found a low METs report in the original claim file. VA said "apply for an increase for heart" in a denial letter for.....an increase for heart. I am not kidding. This first scan is the denial letter for a new claim of apnea and an increase in heart (from 10% award on original claim). THis is not the original claim this is a subsequent claim decision. They did not refer to the portion of the claim that was for a heart increase but I think it's important to note that it was part of the claim that was not acknowledged in the decision letter that follows.

apply for heart increase.pdf

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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%.

This next scan shows the 10-100-60 decision. There is no 60-day notice but does it matter?

10to100to60 decision letter.pdf

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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.

Within 30 days of Dec 10-100-60 letter, he filed a reconsideration and it appeared on ebenefits as a new claim. It was denied. They said "if you don't like it file a NOD". We joke about this, but Hubby had another heart attack one week before the denial of the reconsideration letter was printed. We claimed it, and they merged that into the earlier dated reconsideration request. Somehow this is going to snafu but currently it's in the decision phase. As soon as they make the decision, we will file more paperwork.

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Do we have to file all the CUE issues at the same time?

Is this form the correct way to format a cue:

Is this a proper form and verbage for a cue..pdf

I would either fax it or take it to the VSO for uploading since I won't have an open claim and can't upload it onto ebennies.

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This is going to be interesting.

I know there are CUE's and an NOD lurking in these claims. I just have to lay it all out and decide how to build the NOD and write the CUE's properly so that they are a good foundation for the NOD. What a pain. This guy has 20-years of heart history, multiple MI's etc etc. A/O service-connected already. Less than 5 years rated.

Thanks for the advice.

 

Edited April 10, 2017 by AgentOrangeWife

[Gastone]

NOD previously mentioned that all VSO Reps have the ability to view your E-File from their computers. I recently had a VSR (not my POA VSO) at my VMC, access my E-File and print off a couple CUE documents from 05/16.

You might want to have a VSR check your E-File for Diary Dates associated with your reduction. You need to know how the Rating Dept is justifying the Date of the Reduction.

If you haven't had a history of undelivered mail to your current residence and the Rater indicates the mailing of the "60 Day" with a Diary Date of 65 days from the date of mailing, you've got a major problem.

Semper Fi

 

[AgentOrangeWife]

33 minutes ago, Gastone said:

NOD previously mentioned that all VSO Reps have the ability to view your E-File from their computers. I recently had a VSR (not my POA VSO) at my VMC, access my E-File and print off a couple CUE documents from 05/16.

You might want to have a VSR check your E-File for Diary Dates associated with your reduction.

OK - will do.

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You need to know how the Rating Dept is justifying the Date of the Reduction.

They are basing the date of reduction on a C&P exam where the VA Examiner reported:

nuclear stress test results of 1.0 mets and he also reported interview mets of 3-5 HOWEVER the examiner also checked the box that said the stress test results more accurately reflect current condition. So the RO chose to use the interview mets to reduce. The law reads that the RO can use interview mets if laboratory type tests CANNOT be done. Well, lab tests/stress test was done. The law doesn't say he can choose. It is very specific.

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If you haven't had a history of undelivered mail to your current residence and the Rater indicates the mailing of the "60 Day" with a Diary Date of 65 days from the date of mailing, you've got a major problem.

I sure hope we have received everything. We've had the same PO box since before he started using VA for anything.

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Thanks!

 

Edited April 10, 2017 by AgentOrangeWife

[Gastone]

I've had a PO Box for 30 yrs, every so often I get another Box's mail. Usually, it's from the box's on either side or above or below.

I mark the envelope that it was delivered to the wrong box and give it to the clerk. It has continued to happen and we're not talking Junk Mail.

As to the Mets, ask your VSR to submit a Request for a "CUE Review" of the Reduction with a copy of the Nuc Stress Test Results. If the Rater didn't mention the Nuc Stress Test results in the Reduction Letter, this may be the N & M Evidence required for an immediate reversal.

If the CUE Review request doesn't get the desired results within a couple mos, you still have your NOD option.

Semper Fi

[Berta]

"He did have an IME dated Nov 2016 which is included in the 2 evidence items as my "statement" dated Nov 2016.

IME said "deteriorated" with open order for stent/angio etc."

I don't understand how the VA could consider an IME as 'your' statement.

An IME, that follows the IMO/IME criteria here at hadit,that is prepared by an independent doctor, who has gone over the medicals records themselves, would be described much differently than the way it was worded in the Evidence list from VA in the 2 prior downloads you made.

It is possible that -if this was a valid IME- that they violated 38 USC 4.6 and that could warrant a CUE

basis and you mighty even be able to get the IME doctor to opine on the METs situation......

Can you scan and attach here the IME ( cover C file # name etc prior to scanning it.

The VA, last year , failed to consider an IMO I had sent to them (from the VA Central office's top cardio doctor).I think it was the only piece of evidence I had sent ( along with a 1998 1151 award decision)

The template for that CUE claim is here somewhere (maybe in 1151 forum) and some of my other CUE templates are here as well and they are good guidelines. And our 2 recent winners of CUE followed my advise to the letter.

They denied my 1151 HBP claim and then reversed and awarded in about one month-----under a CUE I filed immediately because it was a clear violation  of 38 USC 4.6. 

Why the VA listed this IME your husband had as 'your statement' is beyond me and I just caught that when I re -read all of the posts here.

 

 

 

 

Edited April 11, 2017 by Berta

[MikeR]

Can you file a secondary heart condition claim to PTSD, and given the VA's desire to reduce people does it make sense to?