Jump to content
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • Searches Community Forums, Blog and more

  • Ad Free Subscription.jpgOne Time Financial Gift.jpg

    Subscriptions and Gifts are NOT Tax Deductible. HadIt.com is NOT a Non Profit.

  • 0
uturn

Is it CUE to infer a secondary condition, deny it on direct SC only....

Question

Hi. Here's what I've got. In 2014 I sought SC for SLE. The VARO inferred secondary conditions listed in my supporting statement. Because they did that I submitted DBQs from docs stating those were secondary to SLE. I also submitted STR evidence that I had symptoms of both SLE and the secondaries in service. The SLE was denied July 10, 2015 and also secondaries of Fibromyalgia and Sjogren's Syndrome. A third secondary for Raynaud's remained open, and I had a C&P exam on July 17, 2015 which opined that my service records were not specific enough for DIRECT SC, and it said nothing about secondary since the SLE was not on the table, having been denied the week before. The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR. That was granted on September 11, 2015. In the same letter my Raynaud's secondary condition was denied, but only contained a discussion of lack of specific symptoms for DIRECT SC. But of course the back of the rating letter lists my expert Raynaud's DBQs as secondary to SLE as "in evidence."  It seems clear to me that they denied the Raynaud's on a sort of separate track from the SLE that they granted, and once they granted the SLE they neglected to go back and consider my Raynaud's as secondary to my now SC SLE.  I had 2 or 3 expert opinions linking the SLE and Raynaud's. Is this CUE?

As for the Fibromyalgia and Sjogren's... the originally had inferred these secondary conditions to SLE but denied them on a direct basis at the same time as my SLE denial on July 10, 2015.  Once they upon reconsideration granted my SLE in September of 2015, was it CUE not to infer those conditions also for reconsideration? They had inferred them in the first place. They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. 

Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? 

Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. And there were a few VA notations of me "appearing depressed" as well during other treatment visits. So I argued to the VARO that it was CUE not to at least just grant the SC with a zero percent rating. Even if they had gotten a C&P exam, I had two experts, one an SSDI doctor, stating that my depression was secondary to SLE. Is that not CUE? 

Sorry to ask so many questions at once.

Thanks very much.

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

Yes many questions-

I have some for you-

By SLE do you mean systemic lupus erythematosus?

You stated:

  "Once they upon reconsideration granted my SLE in September of 2015, was it CUE not to infer those conditions also for reconsideration? They had inferred them in the first place."

Even if they did it is too much to expect them to again infer them- some of these RO people can barely read (in my opinion)

"They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. "

You might have a basis for CUE -is that the last decision prior to the Sept 2015 award for the SLE?

BUT- did those expert reports make it very clear that the secondaries were due to the SLE?

"Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? "

Do you have the BVA case link?

When the BVA makes a legal statement, that can be used to support a claim.I will try to find something on that tomorrow-

Did you file a NOD on these 2015  decisions?

You could certainly re-open with the BVA statement ( best to give them a link and print out of it)and send them the opinions again or the specific regulation ( maybe it is within M21-1MR) and it is so obvious to us here that I cannot remember what reg that would be.Then, if they award the secondaries, you might have a chance to CUE the older denials of them for a better EED than the one that the re-open will garner.

 You said:

"The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR."

I believe you- these C & P docs are awful- but can you prove he/she did not have the private records ?

Are you sure the VA has them? 

Are they listed in the Evidence List of the decisions?

If they are listed as evidence, the VA should have made a statement regarding them.

"Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. "

I feel you should file an IRIS complaint and tell them exactly what you stated above as to your homelessness and send them the citation  you mentioned as to an Original claim--- but this was not the "original' claim -or  was it???

Did the VA ever acknowledge the SSDI records at all?

Share this post


Link to post
Share on other sites

Ad

  • 0

You might find the info you need as to when  a primary becomes SC, then secondaries can be awarded, with medical evidence of the link:

https://www.google.com/search?rlz=1C1CHBF_enUS695US695&biw=1707&bih=831&ei=CY-ZW7rfFpK6tQXYnJH4BA&q=M21-1MR+secondary+service+connection&oq=M21-1MR+secondary+service+connection&gs_l=psy-ab.12...33358.39930..42502...0.0..0.1909.15098.6-6j1j5......0....1..gws-wiz.......0j0i71j0i67j0i7i30j0i20i263.FpZNlZDOIQo

Try the first M21-1MR link- I cannot copy M21-1MR stuff from Word to here- but it might be within another M21-1MR link in the search link I posted above.

M21-1MR often gives citations of the regs and/or CAVC precedent decisions.

Share this post


Link to post
Share on other sites
  • 0
On 9/12/2018 at 6:05 PM, Berta said:

 

By SLE do you mean systemic lupus erythematosus?  YES

You stated:

"They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. "

You might have a basis for CUE -is that the last decision prior to the Sept 2015 award for the SLE?

YES, my original claim was for SLE in August 2014. In my supporting statement I told them of my secondary conditions of Raynauds, Sjogrens and Fibromyalgia. They inferred them into my original claim and then I went out and got DBQs for those by my doctors and submitted them in December 2014. I also submitted a statement from my enlisted Corpsman about symptoms of Raynauds (I wore a parka indoors every day although we were in the Caribbean and complained a lot of my cold hands and feet). Even though he was my only health care provider, they called his statement a buddy statement not medical evidence. 

They denied all of the claims on a primary basis in July 2015. I submitted another expert opinion on the SLE evidence in my STR/SMR that same month and they reconsidered and granted the SLE at 100% 2 months later in September. I did submit a NOD for the secondaries of Sjogrens and FM denied in July but did not state a reason. I had been staying at my Mom's but my time was up there and I was becoming homeless so I had to withdraw the NOD. I did not spend a lot of time analyzing the situation because I was super sick and homeless. Now that I have a home I looked again at the stuff and realized the CUE for the denying the Raynaud's in the September 2015 letter granting the SLE, that they had only considered it on a primary or direct service connection basis. 

BUT- did those expert reports make it very clear that the secondaries were due to the SLE?  YES, very clear, 3 DBQs from specialists for each condition. 

"Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? "

Do you have the BVA case link? YES, this might help someone else. I submitted the case with my Request for Reconsideration based on CUE and, if not CUE then for New and Material Evidence. Here's that case: https://www.va.gov/vetapp14/Files4/1428034.txt

When the BVA makes a legal statement, that can be used to support a claim.I will try to find something on that tomorrow-

Did you file a NOD on these 2015  decisions? I did but withdrew it when I got my 100% for SLE because I was very sick, and also homeless. 

You could certainly re-open with the BVA statement ( best to give them a link and print out of it)and send them the opinions again or the specific regulation ( maybe it is within M21-1MR) and it is so obvious to us here that I cannot remember what reg that would be.Then, if they award the secondaries, you might have a chance to CUE the older denials of them for a better EED than the one that the re-open will garner.

 You said:

"The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR."

I believe you- these C & P docs are awful- but can you prove he/she did not have the private records ?  YES the C&P states that my Claims File was not reviewed, nor any VA or private medical records. Only my STR/SMR was reviewed. 

Are you sure the VA has them?  YES

Are they listed in the Evidence List of the decisions? YES

If they are listed as evidence, the VA should have made a statement regarding them. THEY ONLY LISTED THEM AS CONSIDERED IN THE BACK OF THE LETTER. They did not mention in the letter, within the condition denials that they were denied for secondary connection, only that there was insufficient evidence connecting them to my active duty service. 

"Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. "

I feel you should file an IRIS complaint and tell them exactly what you stated above as to your homelessness and send them the citation  you mentioned as to an Original claim--- but this was not the "original' claim -or  was it??? The secondary depression I added at some point to the claim myself. I have full social security for depression secondary to SLE. So I think I added it during my reconsideration request for SLE in 2015. In my recent letter to them I told them it was CUE to deny that claim based on the missed C&P since there were two expert opinions in my social security records that I had submitted to them, finding it was secondary to my SLE. They should have granted with a zero percent rating in my case. I quoted the missed C&P rule in my letter. The rule is that they cannot just deny solely based on a missed exam but must evaluate the evidence that they do have. 

Did the VA ever acknowledge the SSDI records at all? YES it is in the letter. I had submitted the records myself to them. 

 

The VARO reopened my claim. I don't know whether they did so based on CUE or New and Material Evidence of my primary SLE being granted in September 2015. But either way I will get my secondaries rated and get my SMC-S for rating at 160%, almost certainly. I can then use the CUE for Raynauds denial and possibly also the Depression denial for a different CUE, to try and get back pay to 2014 for Raynauds and 2015 for Depression. They also reopened my Sjogrens and Fibromyalgia, but probably those are NEWM and not CUE since they are entirely secondary and I had not been service connected when they were denied..... Unless it is CUE not to re-infer them when the primary is reconsidered and granted. Only 8 weeks went by between the total denial and then SLE grant on reconsideration, and the 3 SLE DBQs all stated that I had secondary Raynaud's, Sjogren's and Fibromyalgia. I also had submitted separate DBQs for each condition, actually 2 separate expert DBQs for each condition. 

They reopened and scheduled C&Ps for me for next week. For Sjogren's, Raynaud's and Fibromyalgia I have a general medical C&P and a blood test scheduled. I don't know how a general medical will trump all of the specialist DBQs already in my file. Hopefully it is just for the current status of my condition. But they scheduled also a blood test, and there IS NO BLOOD TEST for any of these conditions. So that is bizarre to me. None of those has bloodwork indicators. 

They scheduled a psych C&P next week too, right in Florence SC, which is FLOODED by the hurricane! So I am trying to get my C&Ps rescheduled again. Also my car was damaged in the hurricane so I cannot drive it and they have no rides because the C&Ps are 2 hours away. I am not having success reaching someone to reschedule them again.

Thanks for your response and your time Berta! Sorry for the delay in responding, I have been evacuated and did not check back here before today. I will post my final results here as well. Thank you. Jennifer

Edited by uturn
changed last answer re SSDI records

Share this post


Link to post
Share on other sites
  • 0
On 9/12/2018 at 6:19 PM, Berta said:

You might find the info you need as to when  a primary becomes SC, then secondaries can be awarded, with medical evidence of the link:

https://www.google.com/search?rlz=1C1CHBF_enUS695US695&biw=1707&bih=831&ei=CY-ZW7rfFpK6tQXYnJH4BA&q=M21-1MR+secondary+service+connection&oq=M21-1MR+secondary+service+connection&gs_l=psy-ab.12...33358.39930..42502...0.0..0.1909.15098.6-6j1j5......0....1..gws-wiz.......0j0i71j0i67j0i7i30j0i20i263.FpZNlZDOIQo

Try the first M21-1MR link- I cannot copy M21-1MR stuff from Word to here- but it might be within another M21-1MR link in the search link I posted above.

M21-1MR often gives citations of the regs and/or CAVC precedent decisions.

Thank you I will look at this. 

Share this post


Link to post
Share on other sites
  • 0

It would take a review of your file to determine if there was CUE.  However, you dont want to go filing CUE, on a pending claim especially that has been reopened due to N and M Evidence, 38 CFR 3.156 b or 3.156 C.  

 

Cue only applies to finally adjuticated claims, so if yours is pending (being reopened), you dont want to file CUE.  

Many times, in fact, most of the time, a real CUE (you know, the winner winner chicken dinner kind), is something overlooked by the Veteran, because it takes a great grasp of the regulations to understand when/why/how a CUE would happen.  (Which Berta has).  A collateral attack on a decision based on CUE really needs to specify the particular regulation which was violated in the CUE.  "That doesnt seem fair to me" wont cut it.  Berta often alleges Cue based on a violation of  38 CFR 4.6, and she has mastered that one.  

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


  • Our picks

    • Type 1 Diabetes recent onset!
      I was diagnosed with Type 1 diabetes in September 2017 OUT OF NOWHERE.

      i am a Navy Reservist and deployed in later 2009 to mid 2010 and again later 2014 to mid 2015; had a 2 year recall between those deployments.  

      Only healthcare received since commissioning in 2008 was from the Navy and no issues EVER.

      insulin dependent and have dietary restrictions and in a non deployable status.

      VA denied initial claim due to Type 1 not showing on active duty and now appealing.

      Anyone with successful experience getting a rating with my circumstances?  I live in Upstate New York.
      • 9 replies
    • Agent Orange Kadena Afb Okinawa
      I am looking for anyone who was on Kadena AFB, Okinawa or .Chanute AFB, IL. My dad was there from Oct. 68-April 70. He has ichemic heart disease, diabetes which has resulted in the amputation of his right leg below the knee and peripheral neuropathy. We were denied in 2002 AMVETS filed a claim on his behalf for heart condition, diabetes and back problems. I refiled in December 2011 and have just received the claim statements and medical release forms. I am familiar with filling out this paper work because my husband is a combat veteran of Iraqi Freedom. I have been reading articles from the Japan times and I am a member of the Agent Orange Okinawa facebook page. Another thing that helps make my dad's case is that he was on Chanute AFB, IL and it is on the EPA Superfund list and has PCBs/Pesticides and Dioxins/Furans listed as ground and water contaminants. I welcome any advice, tips or articles that I may have missed in my own research.
        • Like
      • 15 replies
    • CBO Options for Reducing the Deficit: 2019 to 2028 Published Dec 2018
      CBO Options for Reducing the Deficit: 2019 to 2028 - This CBO Report has been making the news. This post includes parts relevant to veterans. Nothing has been decided as of yet and some seem very unlikely but you never know. Forewarned is Forearmed.

       

      https://www.hadit.com/cbo-options-for-reducing-the-deficit-2019-to-2028-published-dec-2018/
      • 10 replies
    • 2019 Veterans Benefits
      State Benefits, Space A and More ... https://www.hadit.com/2019-changes-to-veterans-benefits-state-and-federal/
      • 2 replies
    • Appeal granted and closed.
      My appeal was granted and closed on November 9.  I got an unofficial notification from the DAV on November 15 stating "appeal granted with an evaluation of 30%" which is great!  My question is this:  How long until I get the official notification from the va? Nothing on ebennies has updated since the appeal closed. Appeal is now in historical and just says complete and at originating va office. I understand no one knows va timelines to a tee but a general timeline would be great.  Thank you all! Hope you have a Merry Christmas!

       

      Edit:  This was my first time appealing and it was a VBA grant. 
        • Like
      • 6 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines