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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

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      So could you all take a look and let me know what you think.

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paulcolrain

cue or not to cue....

Question

ok so ,,,, 

if you read back on some of my posts you will see the issues i was having with the va,

long short..

i was :

20bilat

20bilat

20bilat

20bilat

and 40  = 76.4 PAYS 80

NOW IM, 

40 bilat

20bilat

20bilat

20bilat

and 40. = 83.4 PAYS 80

Edited by paulcolrain

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No offense, but give us a summary, of "your" reasons its CUE.  Cite the specific regulation(s) you think VA violated.  You have to show that any error they made was outcome determinative.  If they forgot to dot an "i" that does not mean you deserve 100 percent back to the error, for example.  

If you cant put your finger on the regulatory violation, chances are it wont fly, OR you just are not familiar with regulations.   

Have you thought of reopening due to 38 cfr 3.156 b (if its still pending)  or 3.156 c if its about service records?  

Remember, you just have had to sent that new evidence to them, you dont have to write  them a letter and state that you are reopening due to 3.156.  If you did that in the appeal period, or while the claim was pending, then you should go that route instead.  

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3.156 b New and material evidence received prior to the expiration of the appeal period, I LIKE THIS...

so the cue/ recon happend because a grant of service was awarded and the rater had in front of him (at the time he/she rated) repeated use over time & flare ups both showed more loss of motion than the original range of motion testing. though i was only rated on the 10% level instead of the 20% level that is warranted under the code. 

so that happend..

well while working it at the ro they turned it into a claim and sent me for a C + P exam...

so then i get the claim closed and awared an increase to 1 issue but not the other and the effective date is of what va called a reopened claim

Edited by paulcolrain

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What is your CUE Claim theory? Thoughts and Feelings aren't supportive Evidence of a CUE.

Could you be more specific? How about laying out your CUE Review or Appeal to us?

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1 hour ago, Gastone said:

Could you be more specific? How about laying out your CUE Review or Appeal to us?

ill try Gastone,

first some time line.

1) had a hearing in D.C. at the BVA. 6 contentions where at issue.

2) august 2017 i was Granted bilateral hip condition as a result of that hearing. initial grant of service. so no opinion on rate. ( THE OTHER 4 WENT TO REMAND AND STILL)

3) the raters in the AMC at the BVA in Washington D.C. went through claims folder to rate my newly granted SC.

4) they rated me 10% for each hip under dc codes: 5251.5252 and 5253....... now under those codes 5252 and 5253 the veteran can get higher than 10%. but they didnt do that.

so thats the begining of this cue,,, what the rater decided was,,, for 5252 i DID NOT HAVE forward flex that resulted in a higher rating (30deg =20%) because  c&p exam showed 45 deg of flex with pain. BUT in that SAME c&p exam it clearly shows that under repeated use over time my flex loss of motion at 30 deg fatigue ,locomotion.AND the same c&p exam shows Flare Ups result in loss of motion at 30deg with fatigue ,locomotion.  SO THE RATER HAD IN FRONT OF THEM AT TIME OF RATING A HIGHER WAY TO RATE ME THATS MY BEGINING OF CUE FOR THIS CODE.

ALSO,, DURING THE RATING FOR THE CODE 5253 ,.,,,

what the rater decided was,,, for 5253 i DID NOT HAVE ABDUCTION that resulted in a higher rating (LOSS AT 10deg =20%) because  c&p exam showed 20 deg of ABDUCTION with pain. BUT in that SAME c&p exam it clearly shows that under repeated use over time my ABDUCTION loss of motion at 10 deg fatigue ,locomotion.AND the same c&p exam shows Flare Ups result ABDUCTION  loss of motion at 10deg with fatigue ,locomotion.  SO THE RATER HAD IN FRONT OF THEM AT TIME OF RATING A HIGHER WAY TO RATE ME THATS MY BEGINING OF CUE FOR THIS CODE

ITS CLEAR TO ME THAT THE RATER FAILED TO USE THE FUNCTIONAL LOSS AND  OR THE FLARE UP RULES.

 

SO,,, AFTER ALL THAT,,,, AND WHILE NOT UNDERSTANDING WHAT A CUE IS,,,,, 3/05/18 I SENT THIS EVIDENCE IN FOR AN INCREASE BECAUSE I BELIEVED THEY MADE A MISTAKE AND DIDNT READ THOSE PORTIONS OF THE C&P..

THIS IS WHEN IT GETS STRANGE AND INTERESTING.,,,

THEY SEND ME FOR A NEW C&P EXAM THEN A WEEK LATER 

APRIL 15 I GET A LETTER STATING THAT I CANT ASK FOR AN INCREASE BECAUSE ITS STILL UNDER APPEAL AND HASNT BEEN DECIDED YET. WELL OBVIOUSLY FALSE SO I SENT AN EMAIL IRIS TO SAN DIEGO RO AND GOT A CALL BACK FROM A GUY NAMED DON.

APRIL 19 PHONE CALL. DON TELLS ME THAT THE LETTER SENT WAS WRONG AND HE APOLOGIZES. SAYS HE TOOK A LOOK AT MY FUNCTIONAL LOSS ARGUMENT ABOUT THE RATER NOT TAKING INTO ACCOUNT AND HE SEES THAT THEY SHOULD INCREASE ME BUT HE IS REFERRING THIS TO THE ORIGINAL JURISDICTION BECAUSE THIS IS AN ADMINISTRATIVE CUE... I SAID FINE.

APRIL 25  I SEE THAT EVERYTHING ABOUT THIS CLAIM/ NOW CUE HAS DISAPEERED AND THERES NO INFO. SO I CALL 1-800 THEY TELL ME THAT ITS CLOSED AND IT WAS A PREMATURE CLAIM. SO I SEND ANOTHER IRIS AND THE SAME GUY CALLS BACK DON FROM SAN DIEGO RO.

HE SAYS THAT THE APPEALS MANAGEMENT AT WASHINGTON D.C. DIDNT TAKE HIM UP ON HIS REQUEST TO CUE THEMSELVES. SO HE GOT EVEN MORE HIGHER UPS IN SAN DIEGO TO SEND THIS BACK TO THEM AND FORCE THEM TO CUE THEMSELVES. 

MAY 8 I GET AN EMAIL FROM VSO IN D.C. SAYING THAT THIS CUE SHOULD BE CHANGED TO A CLAIM FOR INCREASE BECAUSE ITS TO HARD TO WIN A CUE AT THE LEVEL OF THE BVA.  I CALLED HIM AND SAID NO PLEASE LOOK AT MY EVIDENCE AND I POINTED IT OUT AND HE SAID GEE. OK.. I SEE THIS... SO YES THE CUE SHOULD GO AHEAD.

MAY 16 I NOTICE I HAVE A REOPEND CLAIM FROM THAT 03/05/18 CLAIM FOR INCREASE. I CALL 1-800 THEY SAY THERES NO WAY FOR THEM TO FIND OUT WHAT JURISDICTION IS WORKING IT BUT THEY ASSURE ME THAT ITS IN THE CORRECT PLACE..

MAY 25 I WAS GRANTED AN INCREASE FOR THE 5252 FOR ABDUCTION WITH AN EFFECTIVE DATE OF THE REOPENED CLAIM OF MAY 16. RATER ONLY USING LATESTS C&P FORM 2018 AND TOOK THE WHOLE THING AS A CLAIM NOT A CUE AND THIS WAS DONE FROM THE SAN DIEGO OFFICE .... TELLS ME  THAT THE CUE WAS NEVER EVEN LOOKED AT.

 

Edited by paulcolrain

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"MAY 25 I WAS GRANTED AN INCREASE FOR THE 5252 FOR ABDUCTION WITH AN EFFECTIVE DATE OF THE REOPENED CLAIM OF MAY 16. RATER ONLY USING LATESTS C&P FORM 2018 AND TOOK THE WHOLE THING AS A CLAIM NOT A CUE AND THIS WAS DONE FROM THE SAN DIEGO OFFICE .... TELLS ME  THAT THE CUE WAS NEVER EVEN LOOKED AT."

Maybe.... you can sure file a CUE on the May 25 award, for a better EED, 

"MAY 8 I GET AN EMAIL FROM VSO IN D.C. SAYING THAT THIS CUE SHOULD BE CHANGED TO A CLAIM FOR INCREASE BECAUSE ITS TO HARD TO WIN A CUE AT THE LEVEL OF THE BVA.  I CALLED HIM AND SAID NO PLEASE LOOK AT MY EVIDENCE AND I POINTED IT OUT AND HE SAID GEE. OK.. I SEE THIS... SO YES THE CUE SHOULD GO AHEAD."

Did he file it or do you have proof that you filed it?

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