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?  

 

[Berta]

To clarify "that I have already starting to give the OAWB names and proof."

This only regards names of employees at my VARO and my claims and the posthumous C & P exams.

And the names of the OGC for the past 24 years- have that ready to send- it took me a lot of time to get those names- OGC would not return my call.

I asked here  about a week ago if others would be willing to tell the OAWB their problems with their  C & P exams and they could refer to me directly,in their complaint  for the same probem,if they contact the OAWB- but I dont expect anyone here to contact them. I will focus solely on my issues.And have a NVLSP statement to support this.

Do you have proof of mailing the evidence from the SMRs to Janesville Intake Center?

Whether proof of mailing or not ----

They did seem to verify receiving it because they said it was not "New and Material"- had you requested reconsideration over the initial denial?

Did you get a 5103 waiver to sign and return to them?

What is the date of any appeal rights they gave to you?

This is ridiculous.

 

"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".???!!"

If I were you I would put all of this to VA in the IRIS complaint.....

https://www.va.gov/

Click on the Contact US thing then on Ask a question, the complaint area is a pop down box when they ask about the issue.

Ask for an email reply -  and meantime , call the White House hot line too-you can tell them you filed an IRIS complaint but if your VARO cannot read evidence,to include your SMRS and the PCP medical nexus opinion, you feel they will not be able to read the IRIS complaint when they get it.

WH Hot Line -1-855-948-2311

 

 

 

 

 

[john999]

A prima facia case for a CUE can mean a quick win.  When VA just makes a gross error such as not reading SMR's then a CUE can really work for you.  Any claim that requires the least bit of consideration beyond simple reading of facts probably is not a CUE.  If Berta says you have a CUE then go for it.  You want this claim to stay and be decided at the VARO.  No 3 year trips to the BVA if you can help it.

[Marineleo]

29 minutes ago, john999 said:

A prima facia case for a CUE can mean a quick win.  When VA just makes a gross error such as not reading SMR's then a CUE can really work for you.  Any claim that requires the least bit of consideration beyond simple reading of facts probably is not a CUE.  If Berta says you have a CUE then go for it.  You want this claim to stay and be decided at the VARO.  No 3 year trips to the BVA if you can help it.

Thank you everyone for all the helpful information!  I am typing up a CUE letter today using some of the other examples on here.  Can I hand submit this at the VARO at Bay Pines?  (It's a little over an hour drive but I would much rather put it in their hand directly and get the stamp on it showing that they received it).  Can it just be in letter format on standard paper or is there a specific VA form that it needs to be submitted on/ with?

Berta in answer to your question- Every time we've submitted something we've had the FDVA VSO submit it via FAX and have saved all the confirmation pages showing that it was sent/ received.  The VSO also pulled it up in the file to confirm that all the documentation we've submitted is in there.  

We did not get a 5103 Waiver.

They had issued the initial decision, we responded back with the highlighted copies of the surgical records (in case they somehow missed it in the other medical records), the Nexus statement from the primary care physician, and the photographs of the large midline scar.  They responded back that it remains denied because the evidence submitted is not new and relevant.  

It includes a 4107 and 21-0958 to fill out but I'm not seeing a date for appeal?

[john999]

Yes, I would take it over to the VA and get a signed copy of your CUE.  Prepare for a wait but I did one and I only waited a few months.  The VA is used to just dismissing most CUE claims quickly because many have no idea what a CUE consists of that will fly.  In your case where the VA just skipped considering your records it may be obvious enough to get a quick decision.

[Berta]

Yes-you can certainly file it in person but then again it might not get where it should be.

The deadline for a NOD is one year after the date of the decision.

But it seems you asked for a reconsieration. Per the new regs on that, that can stave  off the NOD deadline but only until one year after the last decision,  the recon request..

I appreciate that you are accessing the CUE info and templates here-

It can be very brief- Just tell them the law they broke ( 38 CFR 4.6) and copy that regulation into the CUE.

Send then again copies of the highlighted SMRs, and tell them that their legal error manifested an altered outcome to you, and it also deprived you of your VCAA rghts, as they never sent the 5103 waiver either.

Make sure your C file and name and address is on everything you give them.

This is how the VA violates our Duty to Assist rights-but that DTA right cannot be cued. It is the legal error under 38 CFR 4.6 in your case and I have a CUE claim similar , pending.First they said they had attached a 5103 waiver. I still have that decison and it is still stapled - no VCAA 5103 with it.When I raised hell on that they sent it but it included both of my claims on it.They put  both of my issues in the 5103 but only awarded one on my CUE( I have another CUE pending on that award- it was wrong EED)- and I think this is why the director called me twice because the other evidence for the other issue ( that I sent again with the 5103, was not mentioned at all in that decision.) I gave OAWB the names of the RO  VSO who confirmed my evidence for Both claims- and also the Director who tried to manipulate me into believing the VA had somehow cured my husband's 1151 stroke...it was a contributing factor on the death certificate.She said it was Total but NOT permanent at death. I gave the OAWB a rendition of some of the evidence - 3-4 from the VA itself that said he was 100% P & T due to the 1151 stroke.

Also I gave them one of my past posthumous C & P exams on my husband-the C & P doctor opined he might have had a sudden heart attack due to cocaine!  They did this because they did not give him the complete autopsy and toxicology report. He was an organ donor and the toxicology revealed only VA meds in his system. He didnt even drink.I won that claim too ( 1151 DICwhen I realised they failed to send the autopsy to the OGC

and the VA Strategic Health team. I won the FTCA wrongful death claim too.

They also said a Peer Review report , a few months after the RC got my SF 95, confirmed all of my charges-but suddenly the RC, the Peer Cardio VA doctor and the report itself disappeared.VAOLMA said it Never existed. I found it a few years alter at the bttom of a C file copy I ordered and I used it for my AO IHD award.

We are being SCAMMED by the VA.   Some of us are being targeted. This stuff does not happen in a vaccuum.

I believe the raters are ordered to do this stuff.

Wat was the date of the decision that said there was no New and Material evidence.From what I gather here ( and your VSO would know as well, that is the begining date of the one year NOD time frame.

I think you should aend your VSO a copy of your CUE. If he/she has any problem understanding  it, they can join us here and I will explain it to them.

 

 

 

 

 

 

[Marineleo]

The most recent decision where they state there was no new and material evidence was December 30, 2018.  

I asked the VSO about filing a CUE and I don't think he has any clue what's required to do that from all of the information I'm reading on here and everywhere else.  He literally typed about two sentences on a 4138 that said something to the effect of,- Would this not be considered a CUE because we submitted these documents on this date and how is it not new and material evidence. .....   That was it.  

We've gotten pretty much no help from the VSO at all other than a point of contact to send in documents and someone to go to so we can look at the file regularly to see if there's anything new in it.  Every time we ask him what to do, how to do it, or why things are denied he either has no answer at all or tells us something that makes no sense based on everything I can verify on my own looking on line.