1983 Insufficient Exam

[4mydad]

Hi there,

Does anyone know of a case where a DRO revised an effective date during the appeal period because the original claimed condition was never examined (this was in 1983)? I have submitted a NOD for an earlier effective date because after 5 times of claiming foot injury/plantar fascitiias, my dad was finally awarded max rating.  He originally claimed in 1983 and the examination is completely void of info concerning feet.  That was one of the conditions claimed.  Maybe Berta-can you see the VA calling CUE on itself? (CFR 4.7?)

Any info is appreciated.  

Beth

[Berta]

I assume you already filed the NOD and I would be stunned if it corrected any past errors....but possible- a NOD I wrote turned a proposed reduction to be dropped, for my husband years ago.

I feel this will take a formal CUE claim,which should be as brief as possible.

Tell them he is SC now for the same disability he had in 1983 (make sure you enclose a copy of the older decision)

Tell them the diagnostic code is wrong due to the medical evidence you have highlighted in the NOD ( but repeat it in the CUE claim) that was in VA's possession in 1983.

I have templates here for CUE claims.......

 

 

[Berta]

Here is one of my CUE claims:

https://community.hadit.com/forums/topic/71163-carpal-tunnel-cue/#comment-440001

"Yes, that is what I mean.

I have had problems finding a CUE template here- and am sure there is  at least  many here-maybe within posts under CUE topics.

This is one of my past CUEs and can be used as a template/example of what these claims need to include:

VARO Buffalo            date C file # etc 

"

VARO Buffalo            date C file # etc 

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A.

 

 

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

 

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to his death.

 

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

---------------------------------------------------------------

This can be used as a template and there are more templates here but this 

covers the main points:

 

1. Defining the exact legal error with proof from the past decision. (They need the date of that decision and/ or an enclosure of a copy of it-to include the rating sheet info.)

State the exact legal error (I could have used 38 CFR 4.6 but didnt) and stated the IHD  was never acknowledged in the 1998 decision. In your case I would use 38 CFR 4.6 and explain the error to them briefly.You might need to enclose a copy of the C & P exam as well that garnered the decision you are filing CUE on.

Stating the outcome was detrimental to you (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.( I referred to exhibits of evidence that all were in VA's possession at time of the 1998 CUE.)

Also checking to see if the right diagnostic code was used in the older decision and if any regulation had changed that affected the way they rated the disability in the past. I am sure theBVA case rating info in the BVA link shows that the ratings for this disability had not changed since your  past claim was decided.

I have always put my name, address and C file # on every page and exhibit I have sent to them. I always send them USPS Priority with a tracking slip but maybe a CUE can be filed on ebenefits- I don't know.

The 1998 decision was an award letter. But nevertheless it contained 4 separate CUEs  and I succeeded in them all."

added today:

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A."

This is a critical statement unless you are filing within the appeal period ( with one year after the decision)

 

 

Edited April 9, 2018 by Berta
P C problems, high winds

[4mydad]

Wonderful!  Thanks as usual Ms. Berta.  This is within the appeal period but I was hoping to just try to cover in the NOD before having to go the CUE route because of the uphill battle.  

We are blessed to have you~!

[Berta]

Thank you -----We are blessed by Everyone here - because everyone contributes so much knowledge!

"This is within the appeal period"-yes because of the NOD on the 2016 award- but it is not in the appeal period for the 1983 decision.

That is the decision that CUE can be filed on.

Requests for the VA to CUE themselves must be done within the one year after the decision being appealed.

I have had success with that by filing this type of request within days after I got the decision. One request was an IRIS complaint, and held the CUE. They fixed that fast..

[4mydad]

I do remember one of your posts about filing the CUE through IRIS.  So, if I receive a SOC denying an EED for this NOD, I should then use one of your templates to explain the possible CUE?  Will this void any of his rights like benefit of the doubt, etc?  But at the same time submit a Form 9 to reserve the appeal to a higher court?

 

Thanks!

Beth

[Berta]

That would be a good idea because maybe something in the SOC would help with the CUE claim.

CUE does not allow us Benefit of Doubt but that regards solely the CUE claim,if other claims are on appeal.