Help! CUE or hire an attorney for NOD?

[Marineleo]

I need help with a CUE, (and deciding if it's worth filing or if we should just contact an attorney to file a NOD).  My husband filed disability for  1. Large Intestine Resection with moderate symptoms (7329)  &   2. Residual painful scarring; status post left hemicolectomy.  (7804).  We provided to them his IN SERVICE active duty surgical records showing the emergency surgery was performed due to an intestinal bleed. 

They issued their decision stating that "Service connection is denied since this condition neither occurred in nor was caused by service.  There is no objective evidence to support the claimed condition of intestinal bleeding or ulceration; There are no medical records to support the veteran's claimed colon removal.  Therefore it is less likely than not that the veteran's claimed colon removal was incurred in or caused by surgery while on active duty."  

We responded with "new and material evidence" sending ADDITIONAL medical service records which included the emergency admit records at Bethesda, the subsequent clinical medical notes and follow up treatment records and the lab records showing their examination of the 7 1/2" of removed colon.  We also sent color photographs with and without scale of the large abdominal scar and a Nexus statement from his current primary care physician stating that his current and ongoing symptoms are more likely than not a result of the prior surgical procedure.  

They responded back that the claim "remains denied because the evidence submitted is not new and relevant".???!!

Will a CUE help?  If so, is there a "form" we file it on or does it just get submitted on a 21-4138?  What do we need to put in the CUE to explain that they're idiots and clearly did NOT look at any of the medical records if they think he did not have a GI bleed and surgery?  I don't understand how/ why this can be denied when we have all the medical records showing it happened while he was on active duty?  

 

[ShrekTheTank]

Who is your VSO?  I would first contact them as they will typically know what to do.  If everything you are showing is factual then the VSO will be able to tell you exactly what to send in, and what to highlight to show the mistake.  I have found that showing them and not just throwing a bunch of paperwork at them works for me.  Show them everything they need to see to service connect it.  Also on appeal it will go to a higher lane of review and a DRO can overturn any decision.  

 

 

[Marineleo]

31 minutes ago, shrekthetank1 said:

Who is your VSO?  I would first contact them as they will typically know what to do.  If everything you are showing is factual then the VSO will be able to tell you exactly what to send in, and what to highlight to show the mistake.  I have found that showing them and not just throwing a bunch of paperwork at them works for me.  Show them everything they need to see to service connect it.  Also on appeal it will go to a higher lane of review and a DRO can overturn any decision.  

 

 

VSO is FDVA.  We did contact them and he said it makes no sense to him either but he wasn't very helpful in offering suggestions.  He said it looks to him like they just plain didn't read the information we sent them.  When we previously submitted all the documentations, we highlighted and circled all the dozens of places where it shows DIAGNOSIS: Gastrointestinal Bleed,  PROCEDURE PERFORMED: hemicolectomy (removal of the descending colon).  He submitted a 21-4138 asking them how the information we submitted was not new and material evidence but that doesn't seem like something that's likely to get anything accomplished.  I just can't comprehend how service records showing the surgery while on active duty don't clearly create the service connection??  

[vetquest]

This looks like it may be a case of the RO not reading the records fully.  A quick sloppy decision is worse than a decision made in depth.  What I would do is file an NOD on this.  It may also be time to get a lawyer involved.  I hate to say that because they take 20% of your award but sometimes the VA does not follow it's own regulations and we need someone in front of the BVA to fight for us.  That is what happened to me, sloppy decisions that did not consider all of the evidence and the BVA said as much.  In a perfect world we get it done right the first time and no lawyer needs to get involved and we keep all of our award but the VA is not a perfect world.

[Berta]

I would file a CUE ASAP- with the VARO and even with IRIS as a complaint(there is a pull down box for filing complaints at IRIS.) (an IRIS complaint CUE worked for me in 2005)

I assume you have time to put off the NOD for a while.

If the VA had your SMRs ( this would be listed on their evidence and they did make the comment that 

"Service connection is denied since this condition neither occurred in nor was caused by service.  There is no objective evidence to support the claimed condition of intestinal bleeding or ulceration; There are no medical records to support the veteran's claimed colon removal.  Therefore it is less likely than not that the veteran's claimed colon removal was incurred in or caused by surgery while on active duty."  .they obviousy had them but did not know how to read the, o0r was just some lazy assed RO employee.

I have been very successful with using this regulation ( 38 CFR 4.6) as they committed CUE many times on my claims and I have 4-5 pending as well-

Did they even send a 5103 Waiver?

My most recent CUE award came in less than one month after the denial- I have it in pdfs but the dates might be heard to read- will try to post it here again. 

In any event- it is ridiculous what some of us have to put up with-

 " I just can't comprehend how service records showing the surgery while on active duty don't clearly create the service connection??  "

Because some VAROs employee idiots- your VSO should know better and he should know what a prime facie  CUE is .

I am so fed up with the VA pulling this crap over basic VA case law-( with VSOs that support these ludicrous decisions)that I have already starting to give the OAWB names and proof.

Also you could call the White House Vets Hot Line ---1-855-948-2311

Tell them what you told us and what the initials under the Re: part are on the denial- those inititals ( use them in your CUE as who the decision is from,inaddition to your VARO, in any way you file it. This is the last RO person who handled your claim.It is i the alphanumeric code near the date area on the decision.

 

 

 

This is a CUE under 38 CFR 4.6:

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. 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."

https://www.law.cornell.edu/cfr/text/38/4.6

There are CUE templates here- if I have time later I will write it for you---and post it here-

But either the call to the WH Hot LIne or a IRIS complaint might do the trick.

They violated Basic VA case law. State the regulation when you call them or IRIS them - 38 CFR 4.6.We cannot allow them to get away with this stuff.

My call to the White  House was months ago about a different matter. I got a response from the OAWB (Office of Accountability- and that opened a big bag of worms they are investigating- and I have more evidence to send to them-the man handling my complaint to the asked for info and evidence on another matter-

and that matter involves every decision I ever got from the Buffalo VARO., that involved a Bogus and ludicrous posthumous C & P exam. It will be used for my complaint on what MANY vets and their survivors are getting-

incompetent  C & P exams geared solely to deny claims...sometimes not done by anyone who has the medical expertise to do them and the last one I got ( regarding the CUE I won in a month, is being withheld from me- because I want to see if a medical person actually wrote it.I thunk, per the SOC redition, it was written by one of the director's lackeys.

I filed CUE under 38 CFR 4.6 because my probative evidence ( a medical review from a VA Central Top Cardio doctor )was listed as Evidence but was completely ignored.Awarded in less them one month.

If I get another denial I intend to do all above I recommended to you.

This is my War plan in advance for that :

1.Cue via IRIS  Complaint,,

2.CUE directly to the RO with the alphanumeric as Attention to:,

3. Call to the White House hot line, and

4. certainly a formal complaint with the Office of Accountability-

I might even send my RO a copy of "Reading for Dummies."

Dont let ANYONE tell you that you cannot file a CUE in the appeal period.*

It has worked for me more than once. and for 2 or 3 vets here, as well- allan2005 and SPO.Maybe one more

* I had one CUE that took 8 years-I had to file a NOD at the last minute.

It ws awarded by the Nehmer RO with no problem as I raised the point that it was filed prior to my AO IHD claim, was critical to a proper IHD award, and it had not been set to the BVA yet. 

The CUE filing superceded the NOD by almost a year-

if they get a NOD first , they will put off the CUE, yet a CUE right away can cut through a lot of VA BS.

 

 

 

 

 

 

 

 

Edited January 22, 2019 by Berta

[ShrekTheTank]

I think Berta will be correct.  Also you should have a STATE run Veteran Service Officer who will file either an appeal or a CUE. Also what stage of the process are you at?  first decision/DRO/Appeal/BVA/Court of appeals?  

Also there are some rules for filing a CUE

https://cck-law.com/news/cue-claims-how-to-challenge-a-final-decision-video/

 

Edited January 23, 2019 by Tbird
added video

[Berta]

I disagree with one thing- I had a State run VSO 1998. I had rescinded   my POA with the useless DAV rep  and knew a award was coming and I knew the state VSO for many years by then.

He was thrilled to get an award for a claim he had never had impact in- but I questioned the award as to SMC.

He said he didnt advise filing NOD on it and not CUE either beause 1151 awards are different then regular SC awards.Then I had plenty of problems with the whole state division, when I filed another claim ,and I filed an OGC complaint with them.

Everyone who tried to mess up my next (2003)  claim is GONE.

I filed a SMC CUE and won it- I won other CUEs that were in the award.

My point is that although MANY state VSOs can be very good- if they dont understand CUE , how can they help?

I see no reason at all that this vet even needs someone on their POA. This is a Prime Facie CUE.