CUE template for Cannabis

[Berta]

Im so  sorry for the loss of your daughter. The grief must be terrible. 

if you can scan and attach here how far she got wih the CUE and

if we can see the decision here we can help more. (Cover C file# name etc prior to scanning it)

  -Because this is a public forum and what we do to help one vet ,can often help another when they read our posts,I dont answer much profile stuff.

This is one of my actual CUE claims.

"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                

 

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.”

 

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This can be used as a template and there are more templates here but this covers the main points:

 

Defining the exact legal error with proof from the past decision.

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.

 

Checking the ratings for the year you are claiming CUE was made.

Going over 38 USC 5107 and info here for the best way to word and present this type of claim.

 

 “lack of proper rating” or of any rating they should list and rate is a CUE.

 

I didn’t know this was an IHD situation until the AO  IHD regs came out .By then this CUE had been at my RO for 6 years, set for BVA transfer but the Nehmer RO awarded this CUE and 2 others I had pending because they all had impact on a proper IHD Award.

 

[Cannabis]

thank you for the reply.

yes, the grief is unbearable plus it leaves me totally alone in the world. already isolated due to ptsd, depression, etc., now my only helper is gone plus i lost my grandchildren too. 

thank you for the form. i'm actually doing pretty good on drafting the claim but it's a little convoluted, so i'm not sure about specific wording in my case.  i need to tie the facts to my claim.

in essense, the claim is that in 2008 i went to va for my back. they shifted me to psych, and the psychiatrist found that i was homebound (in my med record).  then thru 09 to 10, i applied for disability and it was granted 50%.

i didn't appeal; i thought they might be right. in 2015 i applied for increase. granted to 100%. Jan. 2015.  then recently i reopened the case to claim cue and 1151 (not talking about that here). 

the error is in not examining me for housebound status when my medical record shows homebound plus other symptoms, notes, that show i am unable to work because of depression and ptsd.  if i was examined for housebound (triggered by medical record), then they would have seen that i was 100% at the time.  i was working as a lawyer, lost job in 06, couldn't keep appointments, poor hygeine, confusion, missing time, plus more.

i am not challenging the subjective assessment of the original award.  i'm arguing the original award obviously was incorrect because of va's failure to properly develop my claim.

does this make sense?

 

 

 

 

[Berta]

"i'm arguing the original award obviously was incorrect because of va's failure to properly develop my claim."

That is not a CUE basis-

this  would be CUE-

If, in 2008-2009- whenever you filed the claim that awarded 50%- if VA was aware of medical evidence that should have awarded you 100% at that time- that would have been a CUE- and if you had medical evidence of being housebound-that they knew of, that would be another CUE.

Medical evidence would be an SSDI award solely for  one SC disability`.

And/or a turn down (in writing from Voc Rehab), that your SCs make Voc Rehab unfeasible.

If they had any information like SSDI or Voc Rehab, or an IMO/IME that supprted 100% and they ignored it , that would raise to a CUE.

The Housebound status must be in addition to but separate from a 100% or TDIU disability.

In my SMC CUE here in the CUE forum-"va's failure to properly develop my claim"  was in addition to their  failure to even able able to read their own rating sheet.

They never properly developed any of my claims. We would all be cueing them up the Kazoo if that was a legal error. The legal error ( errors) must be clearly stated.

A rating sheet clearly showed my dead husband was 100% SC PTSD, and 100% under 1151 for a stroke the VA caused. 100% SC plus 60 or over SC for independent additional disability equals SMC.

They also awarded Housebound in the same decision on the CUE award- but of course they only pay once for the SMC "S" award.

My CUE was based on the fact that they "did not consider "  the SMC mandate in 1114, 38 USC and the established fact that he had two separate 100% disabilities.

( I knew if they properly considered the mandate, they would have awarded the SMC in the same award letter.)

The medical evidence MUST be established, and in VA's possession,  before anyone attempts CUE.

It is like the Watergate question- what did they know and when did they know it.

In my case some info they might not have had at my VARO but it was all in VA's possession at the OGC office in DC ( FTCA/1151) and the actual award stated the malpractice in details from the FTCA  Case( it was 1151 DIC award)

If they Did have any probative evidence that you should have been 100% sooner-and you can prove they had that evidence, then this would be a CUE under 38 CFR 4.6- which sure has worked for me in other CUEs I filed.

1151- I hope you have read over the 1151 info here at hadit carefully-

Proof of  VA medical negligence/malpractice and then medical proof of additional disability directly due to the malpractice.

 

[Cannabis]

thank you for the thoughtful reply.

sounds like on the cue i don't have one. i'll just let it go then.

i've read all the cue and 1151 posts. i have many folders and documents and outlines. i've been working on this for years and the little help i could muster is gone.  i can't pull this all together and argue what seems to me clear that they didn't read the record, or if they did they ignored that i couldn't (can't) leave my home often.  that means totally disabled.

you're sure a go-getter Berta. bless you.

[Cannabis]

Berta, i've thought of something.  above, you said:

"If, in 2008-2009- whenever you filed the claim that awarded 50%- if VA was aware of medical evidence that should have awarded you 100% at that time- that would have been a CUE- and if you had medical evidence of being housebound-that they knew of, that would be another CUE. "

The medical evidence was in my V.A. file.  The first appointment notes state that i am "homebound."   The remaining notes also support this homebound, as i was/am concerned about not being able to get out.  i had many discussions at the va about this. it's in the notes.

Doesn't the medical record show agoraphobia possibility; whereas i should have been examined for this during the first c and p where i was awarded 50 percent?  homebound in the medical record, signed by 3 doctors, supported by years of notes/evidence.  i was not asked about not leaving my home at either the first or second c and p. 

Even though i have ptsd, this is a separate mental condition, panic attack with agoraphobia.

Does this make sense?  Do you see anything here for the CUE?

 

 

 

[Berta]

CUEs are not in hyperspace- what I mean is if VA commits a CUE ( and like I mentioned there were 4 or 5 CUEs in my 1998 award letter,) they are found in the actual decisions, controlled by the regulations at time of the decision, and the evidence list, rating info, diagnostics codes etc etc- can all be Legal errors, among other  things...like incorrect EEDs etc etc etc.

Ity is really impossible for me to opine on whether there is a valid CUE here because we cant read whatever the VA sent that could hold the CUE.

"Even though i have ptsd, this is a separate mental condition, panic attack with agoraphobia."

Is this what  they awarded the 50% for- exactly what you said- above or is the panic, agoraphobia separate.

They only make one MH award. Maybe they included  the panic and agoraphobia with the PTSD.

If we can see the decision you feel contains Legal Errors (CUE) we can help more.

Please cover the C file number, your name, address prior to scanning it and you can attach it here. But don't  cover the date of the decision.

 

Edited July 11, 2018 by Berta

[Cannabis]

Thank you berta. i don't have my c file. i only have the letters sent with the decision and the notes in my medical record about the c and p exam.  i was diagnosed with ptsd, major depression and cannabis use.  50 percent in 2011.  then i opened new case 2015, because i went from bad to worse instead of getting better like i hoped.  they  granted 100 percent in 2015. 

i was ok with that; really so weary and unable to fight but it looked like it was over.

then when putting papers away, i read through medical record for some reason, maybe like one last time, a bad habit i can't break

but i saw that i was noted as "homebound" by the psychiatrist resident, verified signed by the phd psychologist, and the head of the psych department, and md. 

then, all the next appointments mostly had to do with my concerns about getting out, missing appointments (verified by medical rec missed appointments), missing time, hiring drivers, etc. it's well documented in my medical record these things that are/were the actual cause of my not being able to pursue and maintain gainful employment.  of any kind, let alone in my field that required the highest level of detail, complex and critical thinking/acting/speaking, professionalism.  i couldn't leave my home, still can't, except for emergency.  i even order food from internet now.

these are the type of entries in the medical record (psychologist phd, and psychiatrists, md's) yet i was never asked about it during the c and p exam.  which for "agoraphobia" the c and p would include discussion or question about being in fact "homebound" aka housebound.  legal term of art at the va: "housebound-in-fact". 

this error in identifying the most relevant (for gainful employment), critically disabling condition in my v.a. medical record, (agoraphobia or panic attack with ... or housebound/homebound or whatever they call it), were never addressed in the c and p exams nor in the c and p write up.  or award letters.

 i have dbq's from 2 doctors and 1 nurse re: current housebound in fact. it doesn't seem to be disputed that i am now and was then (2008 coming to v.a., 2009 apply for disability, 2010 granted 50 percent, 2015 asked to reopen file, va immediately scheduled c and p, awarded one hundred percent in 2015, 2017 sent notice to va that they made error and i have 1151 claim, now working on error/cue claim here with you.  thank you for helping.  i'm getting it figured out and the work done but it's a long haul and so hard. i've been sick, injured, car stolen, daughter murdered, plus more. so everything goes slow for this old lady. i plug along and it helps to have someone to talk it out with.  you've helped me so much.

when i went to the va at first, it was for the scoliosis in my back. i thought they could help fix it. after 30 years of pain, i thought it was a good idea to ask them about it. sometimes/often chronic pain people do think about suicide. i'm no different. so when they heard that, they sent to shrink instead of back doctor which was going to take a long time.

i went along to the appointments, missed alot, had miscommunications, had missing time, anxiety during appointments, etc., these just observed from the facts of the file, and the notes/entries by the doctors.  the va came up with the idea of ptsd, (i'd never heard of it before) and depression and cannabis use.  they missed one: agoraphobia, it looks like, but i'm not a doctor.  i need shrink type to say that?  to say/state/witness/document that's what the diagnosis should have been, and if it was that, then but for their error in not reading my medical record, i would have been one hundred percent and housebound in fact. (instead of fifty percent).  giving me the eed of 2009.

can they skip over diabetes or other indicators of blood sugar problems that directly point to diabetes? example.

or if i came in to va with s/c legs off at the knees, and said it prevented me from getting out, and the doctor wrote a note: homebound veteran, doesn't leave his house except with help and companion driver, and only for necessity.  and then went on to diagnose diabetes and the vet got fifty percent for diabetes. 

i've been contacted by a va social worker who determined i was homeless/living in conditions not made for habitation, and she notified the RO of same. they are waiting on the dbqs and the statements of the doctors/nurses which are going to change because i just have discovered "agoraphobia" in the last few days.  i had no idea it was a medical/mental diagnosis or that's what i likely have. 

so i have to hone the statements of the witnesses, and i think get a psych exam to verify condition and medical record analysis.??