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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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mrstephens11

Filed 3 CUEs, have 3 C&P exams: Question...

Question

Good news, I filed three CUEs and now have three C&P exams.  Great news, it's with the VES and not the VA.  The best news, I've seen one of these VES Doctors before and he rated the disability exactly correct!

My question is, since I was given the C&Ps for the three disabilities that I filed the CUEs against, does this mean that the VA is agreeing that they made a CUE?  I understand the exams still have to happen for the rating portion, but does this mean the bureaucratic part of the VA agrees there was a mistake?  Logic tells me "yes, why would they schedule an exam if they were just going to deny the CUE."  However, this is the VA and logic is hard for them.

Last night I was going through my records to get them ready for the C&Ps.  While I was doing this, I found another CUE that if accepted will net me another 10% back to 2005.  Go through your records, DBQs, and Rating Decision letters, you might have CUEs just waiting to be found!

 

Thank you,

Stephens

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I will put the CUE information up when I get the BBE.

I know I want to CUE the effective dates.  Is their a SOP for filing a CUE like Berta did in the appeals period?  I've read around here and it looks like it's still a new tactic.  If someone can point me to the right thread or give me some advice I will make a new thread with how I did it and how it goes.

Second question, I have a bilateral condition, 10% and 10%, which should add up to 1.9% with the VA's math.  How is that counted in towards my rating?  I don't see it in Ebenefits.  Is that 1.9% rounded down to 0% or is it rounded up to 2%?  Here is a break down of my ratings.  I think this only gets me to 82% if we use VA math.  Is that right?  God that just feels so wrong.

  1. 70%
  2. 20%
  3. 10%
  4. 10% 10% Bilateral

Thank you all,

Stephens

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So all three of my CUEs where denied. 

All three of my CUEs where for denied service connection due to lack of evidence in my record.  I had STR evidence that wasn't in my C-File and I attached it for all three of the CUEs when I filed them.  The VA took this as an opportunity to reopen my claims.  I was awarded 20% for hemorrhoids, 10% for painful motion of knee, and denied hearing loss because they said I hear fine.  The two effective dates are the date that I submitted the CUEs.  Here is what the RDL (ratings decision letter) said.

Quote

The effective date of this grant is October 17, 2017.  Service connection has been established from the date the VA received your claim.  When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date the VA received the claim.

A clear and unmistakable error was not found in the previous rating decision dated September 2, 2015. The rating decision denied service connection for hemorrhoids because evidence of record at the time showed no evidence of hemorrhoids. Therefore, an earlier effective date establishing service connection was no shown.

I believe, that by entering the STR from the navy medical doctors and that the VA stated the "evidence of record at the time showed no evidence of 'symptom'", that 38 CFR 3.156(c) should apply and I should be granted an earlier effective date since I filed a claim for these disabilities with in one year of my discharge in 2005.  Would someone please chime in and tell me if that is correct?  Here is a link to the code (https://www.law.cornell.edu/cfr/text/38/3.156)  Here is a link to the https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/ where I found out about this.

So I think I can NOD or CUE the effective dates.  Should I ask for DRO review and point this out?

Edited by mrstephens11
To make post clearer.

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Based on what Berta has said about "Go CUE yourself" (asking the VA to file a CUE on their behalf during your appeals period), I have drafted this request.  Please let me know what you think.

 

Quote

I respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 3.156(c) New and Material evidence” and to correct the effective date of my claim for hemorrhoids and chondromalacia right knee.  I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE.  The VA reopened my claim after denying CUEs for both hemorrhoids and chondromalacia right knee.  However, I was award service connection for both based on the new and material evidence I submitted.  This new and material evidence is “Service Department Records” and were not a part of the “evidence of record” at the time of reopening of the claim.  Since I submitted a claim for both hemorrhoids and chondromalacia right knee within one year of my discharge, the effective date should be 09/17/2005 instead of 10/17/2017.  My first claim for hemorrhoids and chondromalacia right knee are in my C-File.  To add to this, the ratings decision letter I received in 2015 stated that my chondromalacia left knee was back dated to 09/17/2005 because of the un-adjudicated claim within one year of my discharge, which is the same claim I originally claimed hemorrhoids and chondromalacia right knee.

I respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 4.59 – Painful Motion” and “38 CFR 3.103 - Procedural due process and appellate rights” and to correct the lack of rating painful motion for both diagnostic code 5260 (Leg, limitation of flexion) and 5261  (Leg, limitation of extension). I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE.  The VA reopened my claim after denying a CUE for chondromalacia right knee.  However, I was award service connection for painful motion of the knee based on the new and material evidence I submitted.  The VA didn’t specifically state in the rating decision letter which range of motion this was grated for.  Since I have pain in both flexion and extension, as noted in the C&P exam dated 11/28/2017, I should be rated for 10% for diagnostic code 5260 and 10% for diagnostic code 5261.  The effective date for these disabilities should be 09/17/2015, based on the reasoning and law stated in the first paragraph of this request for the VA to call “CUE” on themselves.

 

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I am a little confused here on all of this-you apparently have 2 decisions you disgree with.

Can you scan and attach those decisions here ( Cover C file #, name, etc) as to their Reasonand rationales for the decisions and also the Evidence list they used?

 

Also is it possible the recent C & P exam results might lead to a new decision that covers everything?

If these issues can be handled under the 38 CFR 3.156(c) New and Material evidence regulations, that is often a far better approach then filing a CUE.

I think they denied your CUE claims but used 38 CFR 3.156 correctly to re-open?

 

 

 

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rdl2.thumb.JPG.9b69bc0343e5122a40bacd6aa0fcb739.JPG

RDL.thumb.JPG.af075a4b8e56b35a6f8f3a744433ba02.JPG

Yes, I have two issues with the way this played out.  One is that the effective dates for both the hemorrhoids and chondromalacia right knee are wrong, since I gave them new evidence from Service Treatment Records.  The other issue is the fact that I feel I should have been rated for painful motion for both flexion and extension.  The VA didn't say which diagnostic code they used for rating the painful motion and since both flexion and extension have painful motion, I feel I should be rated at 10% for both.

How should I proceed?

 

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