need help fast on this CUE because they want me to change it to NOD

[paulcolrain]

please help soon friends because,,,

I NEED TO CALL MY VSO IN DC 2MRW BECAUSE HE JUST EMAILED ME SAYING THAT IF I WANT TO WIN A RECONSIDERATION CUE ABOUT A MISTAKE AT THE LEVEL OF THE AMC BVA LEVEL IM GONNA BE UP THE CREEK ONLY BECAUSE 5 OUT OF THE PAST 30 YEARS HAS BEEN GRANTED.

SOME BACK DROP ON THIS IS,,, MY APPEAL WAS GRANTED BY THE AMC IN DC AND I FILED FOR AN INCREASE AT THE RO.... WELL RO CALLS ME AND SAYS ITS THE WRONG JURISDICTION AND THAT HE IS LOOKING IT OVER AND AGREES WITH ME ON WHAT THEY MISSED IN THE RANGE OF MOTION FOR FUNCTIONAL LOSS ... SO HE SAYS HES SENDING IT TO THE ORIGINAL JURISDICTION OF THE AMC IN DC AS A REQUEST FOR RECONSIDERATION AND AS WE ALL KNOW THAT IS ACTUALLY CALLED A CUE. SO IM STUCK ON WHAT TO DO NOW PLEASE HELP AS I NEED TO CALL THEM 2MRW WITH AN ANSWER.

this is what DBQ states for abduction 

this is what the decision letter said and why this is cue?????

[broncovet]

You posted, 

Quote

 ... SO HE SAYS HES SENDING IT TO THE ORIGINAL JURISDICTION OF THE AMC IN DC AS A REQUEST FOR RECONSIDERATION AND AS WE ALL KNOW THAT IS ACTUALLY CALLED A CUE. 

Well, no.  A request for reconsideration isnt the same as a CUE.  Importantly, a CUE has a "higher standard of review" than a request for reconsideration.   

You also posted:

Quote

HE JUST EMAILED ME SAYING THAT IF I WANT TO WIN A RECONSIDERATION CUE ABOUT A MISTAKE AT THE LEVEL OF THE AMC BVA LEVEL IM GONNA BE UP THE CREEK ONLY BECAUSE 5 OUT OF THE PAST 30 YEARS HAS BEEN GRANTED.

 This statement does not make sense to me.  Help me understand.  Does this mean that you were awarded benefits 5 years ago, but you are seeking an effective date 30 years ago?  

    My suggestion is you probably ask your VSO to put your CUE "on hold" while you do some additional research, reminding you that a CUE can be filed at any time, so there is no deadline. That is, tell the VSO not to send in the CUE, and that you may "amend"  it after some research that I suggest, below.   Unless you are sure, and have done your homework, dont file a CUE.  I filed only one, and did not get a good result, in fact it was probably counter productive.  

   Did you specify the regulation(s) VA violated in the CUE?  Did you show that, except for the error, it would have manifestly changed the outcome? Did you specify not onLY,  the decision in error, but the portion(s) OF THE DECSION WHICH ARE ERRONEOUS?   Did you check on the regulations at the time of CUE?  Or, did Berta or maybe Alex help you with the CUE?   (If Berta or Alex helped you file the CUE, then its probably a good one). 

   Cue is mostly about the effective date.  Did you apply for benefits 30 years ago, and was it denied and you did not appeal?  Remember, Cue only applies to a finally adjuticated issue.  

 

Edited May 11, 2018 by broncovet
SMALL CHANGES

[Berta]

." SO HE SAYS HES SENDING IT TO THE ORIGINAL JURISDICTION OF THE AMC IN DC AS A REQUEST FOR RECONSIDERATION AND AS WE ALL KNOW THAT IS ACTUALLY CALLED A CUE. "

As Broncovet said- that is not a CUE claim.

We have significant info here on Reconsiderations and CUE.

He- the VSO or VA person ? - might need to send them some New and Material evidence and/or the actual regulations,  to prove they should have considered :

" WHAT THEY MISSED IN THE RANGE OF MOTION FOR FUNCTIONAL LOSS ... "

 

[Berta]

I don;t understand the actual topic of this thread:

"need help fast on this CUE because they want me to change it to NOD"

In a prior post you made, it states:

 

"ill also add that on the decision letter i recieved in August of 2017 does state " this is to be considered a full grand of benefits and this issue on appeal is now final and closed"

so then i ask for increase and im told its still pending.."    a separate issue from this?

https://community.hadit.com/topic/71749-bad-letter-please-help/ This was in April-2018

I assume (because I sure dont have the time to read all of your posts) that the reconsideration was filed on the August 2017 decision.

I hope you can get a copy of what was filed. I dont understand your concerns for fast answers...we dont have enough info....

The decision you posted above clearly states why they did not rate you higher- but this looks like a RO decision?

I dont not understand ,if this rating came from a RO, why anyone would want to file a Reconsideration on the BVA decision. But maybe it was from th AMC????

I now think it could be the basis for a CUE if this was in a Regional office decision:

"WHAT THEY MISSED IN THE RANGE OF MOTION FOR FUNCTIONAL LOSS ... "

They state they considered Deluca  and then state

“A higher evaluation of 20 percent is not warranted for impairment of the thigh unless the evidence shows :

Limitation of abduction of the thigh, motion loss beyond 10 degrees.”

I dont know what diagnostic code they used.

IF this decision you scanned and posted above  came from a Regional Office ,in my opinion, and IF they did have evidence of "motion loss" beyond 10 degrees in your established medical records, ( or maybe even stated in any IMO/IME you might have sent to them) 

then they have committed a CUE under 38 CFR 4.6. The CUE claim would also need to refer to the diagnostic code they used.

This is all very difficult to understand. Maybe the above decision came from the AMC..????

We really need to see  a scan of exactly what the VA person or rep said they were sending to the VA....and to what  part of VA...BVA? AMC? or the Regional Office?

38 CFR 4.6 is searchable here and there are CUE templates....BUT my opinion on a potential CUE above is based on a hypothetical

understanding of all this  -because I have no idea what has been filed as a Reconsideration Request , and where how and where it  was filed------and IF  the VA did have medical evidence to warrant the higher rating on the basis of functional loss.

And  also it might have been the Best way  to handle this, whatever the VA man or VSO did....maybe their request has showed up on your ebenefits account by now.

 

 

 

 

 

 

 

 

 

Edited May 11, 2018 by Berta

[paulcolrain]

15 hours ago, broncovet said:

This statement does not make sense to me.  Help me understand.  Does this mean that you were awarded benefits 5 years ago, but you are seeking an effective date 30 years ago?  

 

5 hours ago, Berta said:

I dont not understand ,if this rating came from a RO, why anyone would want to file a Reconsideration on the BVA decision. But maybe it was from th AMC????

ill try to clear it up. 

yes i received a grant of service connection and that award was decided and rated by the Appeals Management Center in D.C at the bva. so from that decision i sent info from my C & P exam that the rater said they used but then i seen that they didnt read the functional loss page and the repeated time page. so this created a claim for increase. then they kick it out .. then  the SDRO calls me to tell me that the jurisdiction was wrong and its actually needing to go to the Appeals Management Center in D.C who was the original rater.. then says hes calling it an administration request for correction then uses the words cue then uses the words well a request for recon..

ok thats at the level of the SDRO

now i also have a current remand at the bva so i have a VSO in the building there. he emailed me and said i needed to pull my request for reconsideration administration correction because those type of things have only been won 5 times out of 30 years .  and wants me to reapply as a notice of disagreement ... now ill also add that i read some things on here and this is a typical sham from VSOs .. quoting his email words to me  "And if you want to challenge the ratings from August 2017 with any hope of success the request for reconsideration must be withdrawn and a Notice of disagreement filed by August 14, 2018.    The standards for reconsideration are so high that we only know of five at the Board level in the last 30 years.  "

 

so did i clean this up for you guys?

Edited May 11, 2018 by paulcolrain

[paulcolrain]

[Berta]

OK I think I get it now_I am not very familiar with the Appeals Management Center.(aka what we used to call the Black Hole)

This article states:

“About half the claims submitted to BVA are remanded to the Appeals Management Center (AMC), with clear instructions on how the claim should be further developed. Once that has been done, AMC makes its decision. If a veteran decides to appeal a denial, the claim automatically goes back to BVA for more review. This is where the Legion’s appeals representatives get involved again; they review more evidence, put together presentations for informal hearings and resubmit the appeal to BVA.

 

Unfortunately – despite clear instructions from BVA – the Legion’s representatives frequently argue successfully that AMC failed to comply with those instructions, resulting in another remand and delay of a decision for the veteran. The Legion stated that VA insiders "familiar with this process of repeated remands for the same claim refer to this endless cycle as the ‘perpetual remand wheel,’ where a claimant has to endure even more months, and often years, of claim development prior to receiving a final decision from BVA."

The article was written in 2013-

https://www.legion.org/veteransbenefits/216248/claims-appeals-why-they-take-forever

There are 176192 decisions at the BVA that had been remands to the AMC, from how I interpret the BVA site.

It clearly says that a denial by the AMC will “automatically” be returned to the BVA.

But you are appealing an award letter- my best advise- I hope others chime in however- as I was only at the AMC once-VA had sent my  claim there in error)

is, in my opinion-to file CUE

in the appellate period ( but mark your calender on the NOD deadline -which a reconsideration requesr t- I posted that info here recently as to the March 2015 change to M21-1MR on Recon Requests and NOD deadlines)

IF the diagnostic code was wrong ( to your detriment), and if the VA had in their possession, medical evidence that should have warranted a higher rating or more favorable diagnostic code ,

basically what I stated here this AM:

“A higher evaluation of 20 percent is not warranted for impairment of the thigh unless the evidence shows :

Limitation of abduction of the thigh, motion loss beyond 10 degrees.”

I dont know what diagnostic code they used.

IF this decision you scanned and posted above  came from a Regional Office ,in my opinion, and IF they did have evidence of "motion loss" beyond 10 degrees in your established medical records, ( or maybe even stated in any IMO/IME you might have sent to them) 

then they have committed a CUE under 38 CFR 4.6. The CUE claim would also need to refer to the diagnostic code they used."

It came from the AMC so they have jurisdiction over the CUE claim.

This is a simple CUE you can  prepare and there are templates here.

 "And if you want to challenge the ratings from August 2017 with any hope of success the request for reconsideration must be withdrawn and a Notice of disagreement filed by August 14, 2018.    The standards for reconsideration are so high that we only know of five at the Board level in the last 30 years.  "

I dont buy what this VSO is selling. Except I do not see this as a Reconsideration Request (which would involve sending them new  and material evidence they have never seen before...)

I see it as a CUE because you seem quite determined that you believe you fit into the higher rating,so  I assume your medical records do reveal proof that this statement they made is wrong in stating you dont meet the criteria for :

"Limitation of abduction of the thigh, motion loss beyond 10 degrees"

But I have no idea if you do,in fact have motion loss beyond 10 degrees. That info would be within your medical files.

Yet the VSO might well be correct because they know more about your case than I do and knows what evidence VA had and didnt have when the AMC made their decision.