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?????

[paulcolrain]

BY THE WAY DURING THIS WHOLE THING THEY SENT ME TO ANOTHER C + P AND THESE ARE THE NEW RANGE OF MOTION SO FOR ABDUCTION AGAIN SHOULD BE INCREASED.

ILL ADD THAT THE 2015 C+P DID STATE FLARE UPS AND FUNCTIONAL LOSS THOUGH THIS ONE JUST SAYS I DONT. BUT AGAIN IN 2017 THE RATER HAD IN FRONT OF HIM THE 2015 EXAM THAT SHOWS ABDUCTION LOSS BEYOND 10DEG AND IT SHOWS DUE TO FUNCTIONAL LOSS FATIGUE AND WEAKNESS. THIS 2018 EXAM DOESN'T.

[Berta]

In any event this is a CUE claim you could send to them:

AMC Address                                                                your C file #

                                                                        Attention to -put here the alphanumeric code on the upper right hand side                                                                            of   the August 2017 decision- the alpha is inityial;s for the last person who handled your claim                                                                                                            

 

 

This is a claim of CUE (Clear and Unmistakable Error) under auspices  of 38 USC 5109 et al.

In your August ( put exact day date here ), 2017   decision , you violated regulations within 38 CFR 4.6.

I have enclosed that part of your decision as to your Reasons and Basis for this statement:

 

“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.You will have to check and see what DC they used and if that is wrong tell them that too)

My medical records will reveal that I have motion loss beyond the 10 degree criteria , and I have enclosed that medical evidence, which  was also in your possession at time the alledged CUE was made in the enclosed August (  ) 2017 decision.

This error had a manifested altered outcome to me, and to my detriment.

The regulation that was violated is 38 CFR 4.6, and I quote it here:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

I have enclosed:                                                                              Respectfully, 

                                                                                                             (sign here)

List here all enclosures, and count them and put the total here as well.

Example: Exhibit A     2017 decision page (    )

                  Exhibit B Medical records that prove the extent of motion loss beyond 10%  (  )

Total of enclosures :   (   ) 

                   

Make sure your C file # , name and address is on every enclosure.

I use the name and address stickers that AL and DAV sends to me. You might have to write it all out.

Mail this with a Proof of mailing receipt.

I always use USPS priority mail and pay for a tracking slip- that way I can trace the packet via USPS and print off the Tracking receipt info when it arrives at the VA.  ( to have hard copy Proof they got it.)

 

 

 

Edited May 11, 2018 by Berta
tweeked the CUE

[paulcolrain]

WOW BERTA!!!!! THIS IS GREAT!!!!!! THANK YOU SOO VERY MUCH.

 

[pwrslm]

Might think about finding a friendly provider to fill out another DBQ on your condition also, the old one showed a problem, if the new one shows a problem, the one in the middle is pretty much moot.

[paulcolrain]

1 hour ago, Berta said:

(I dont know what diagnostic code they used.You will have to check and see what DC they used and if that is wrong tell them that too)

HI BERTA,, JUST WANTED TO ANSWER THIS QUESTION FOR YOU

IM RATED UNDER 5251,,,5252,,,AND 5253

NOW THE ABDUCTION IS UNDER 5253

[Berta]

 

My biggest concern is that I never handled a CUE that was in an AMC decision-

There are   46729      decisions at the BVA with the words Appeals Management Center and CUE in them. I only breezed trugh a few but feel better now-

Some of them say “ and is REMANDED to the RO via the Appeals Management Center “

So I assume that a regular CUE would be appropriate here and not a Motion for CUE.

But that might not even be an issue. 

This is my BVA search in 5253:

https://www.index.va.gov/search/va/bva_search.jsp?QT=Abduction+thigh&EW=DC+5253&AT=&ET=&RPP=10&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

I am in a dense cloud and might lose internet to my Sat dish any minute now----but posting that seach here for later-

Lots here to on 5253 and thigh-

http://www.militarydisabilitymadeeasy.com/hipandthigh.html

In part:

"Pyramiding: A single condition can only be rated once! However, if a nerve condition exists that is additional to the hip or thigh condition (not simply caused by it), then it can also be rated.

Probative Value: If two exams record the condition differently, the exam with the most thorough data and performed by the most qualified person in that specialty will be the exam the rating is based on.

A Tie Goes to the Veteran: If there are two equally strong exams with conflicting information, or if the condition can be equally rated under two different codes, then the one that gives the highest rating will be assigned. Every conflict should be resolved in favor of the higher rating."

Maybe that is a point you should add in the CUE-that the VA should apply the highest potential rating to the thigh condition, eve if that requires a different diagnostic code.

The linked article above also states:

Other Hip and Thigh Conditions

"Diseases that affect the hip and thigh can be found on the Diseases of the Musculoskeletal System page and cancer in the hip and thigh can be found on the Cancer and Tumors of the Musculoskeletal System page. All other hip and thigh injuries or conditions will be rated analogously (see the Analogous and Equivalent Codes page) with the above ratings. The bottom line rule is to rate any condition under the code that BEST describes it, even if it is not exact."     they have links to those pages as well.