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

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    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

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Vync

How long does a higher level review/CUE take?

Question

How long does a higher level review/CUE take? I initially called the 1-800 number and they said supplemental reviews are supposed to take less than 125 days, but they were not certain about higher level reviews. The agent speculated they could take a year or longer.

This post was changed to track my claim as it made it's way through the VA system. This may help other veterans understand some of the inner workings of what goes on behind the scenes.

Why am I calling this HLR/CUE and not just CUE or HLR?
At the time the claims were submitted, other members have indicated filing their CUE claims as regular letters. With the overhaul to the VA claims and appeals process in early 2019, they have became sticklers for filing on certain forms. Unfortunately, there is no mandatory form for a CUE claim. With HLR and CUE being mostly similar, aside from the restrictions of CUE, I wanted to cover my bases and not cause any delays with them having to come back and ask me to use a specific form.

Quote

Background: Initial claims were filed in 1995 and awarded on appeal in 2000, but the VA failed to follow the laws in effect at the time and resulted in incorrect initial ratings.

CUE Claim 1: Rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522)
1. C&P examiner felt I always had this condition
2. VARO reduced rating from 30% to 20% based on C&P examiner's opinion
3. VARO failed to follow 38 CFR 3.322(a): "If the degree of the disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made."
4. Expected outcome: Reversal of reduction. Correction of initial rating from 20% to 30%.

CUE Claim 2: TMJ (38 CFR 4.150 DC 9905) due to oral surgery
1. C&P examiner noted max ROM qualifying for 0% rating, plus painful/limited motion ROM qualifying for 20% rating.
2. VARO granted 10% per 38 CFR 4.59 Painful motion: "It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."
3. VARO failed to follow 38 CFR 4.2 "Interpretation of examination reports" by not recognizing C&P examiner notes for limited/painful motion qualifying for 20% rating.
4. VARO failed to follow 38 CFR 4.40 "Functional Loss" and 38 CFR 4.45 "The joints". Painful motion = limited motion.
5. Expected outcome: Correction of initial rating from 10% to 20%.

 

HLR/CUE timeline

2019-09-20 Mailed to VA certified mail w/return receipt

2019-09-23 Claim received

2019-10-08 Not yet posted to va.gov. Called 1-800-827-1000. ETA March 2020.

2019-10-17 Moved you evidence gathering, review, and decision as of 2019-10-15. ETA November 4, 2019

2019-10-22 Moved to initial review as of 2019-10-03. ETA March 30, 2020

2019-10-24 Requested records

2019-10-29 va.gov status unchanged. Development letter sent. Called 1-800-827-1000. Claim is in the national work queue and being worked by Houston VARO. The development letter was the typical "we got your claim and are working on it". They sent a request to the Birmingham VAMC for medical treatment records from 1995-1999. Called the VAMC's Release of Information Office and they have 20 business days to complete the request.

2019-11-25 Called 1-800-827-1000. Status still unchanged, but the suspense date of the medical treatment records request has expired. VA agent sent IRIS request. Called the VAMC's Release of Information Office. Paper copies were mailed via USPS certified mail to the Evidence Intake Center in Janesville, WI. They were nice enough to provide the USPS tracking number.

2019-11-29 Certified mail tracking shows package was received by the Evidence Intake Center in Janesville, WI.

2019-12-11 Called 1-800-827-1000. Paper copies have been scanned in to PDF. Waiting to be picked up by a VARO.

2019-12-12 Called 1-800-827-1000. The call center agent (Donald) sent an IRIS request to inform the VARO that the claims are ready to proceed.

2019-12-20 Moved you evidence gathering, review, and decision as of 2019-12-19. ETA January 23, 2020.

2019-12-27 No change to va.gov status. Only change is ETA of May 27, 2020, which is five months out. Called 1-800-827-1000 and was given a strange status. First, they said they were waiting on more medical records from the VAMC from December 20, 2019 through January 20, 2020, which doesn't make much sense. I called back later in the day and was told something different. Called my POA VSO. They said the VA sent me a letter asking if I had any additional evidence to add. The VSO said the ETA is probably out so far because they are waiting for a response from someone outside of the VA system (i.e. me).

2019-12-30 Checked va.gov and noticed it says they sent me a development letter and items need attention. Called 1-800-827-1000 and they said a letter was not sent out and they are not waiting on anything from me. My claim is still at the VARO and assigned to a VSR. They found a note indicating that the recent second request for VAMC medical records was in error. They said they have seen this happen before where it triggers the ETA date to be pushed out automatically. In this case, it cost me about six to seven weeks of unnecessary delay.

2020-01-03 Checked va.gov and no change. Called 1-800-827-1000. The call center rep said it was confusing and transferred me to someone else who could help tell me what is going on. Talked with a friendly lady who said that on 2020-01-02, the person developing the claim sent a message to the quality department asking if the claim should have been submitted on 21-526EZ or 20-0995 (supplemental claim form). Fortunately, earlier today, @Dustoff 11 posted the exact information from M21-1 indicating that no specific form is required. I provided that to the lady and she sent a message to the VARO to let them know exactly where it is. No clue if they have actually processed my request and were just double-checking or if they still need to do it. At least I was able to help them to help me, I hope.

2020-01-07 Well how about this. I received a letter in the mail from the VA yesterday which was dated 2019-12-20 requesting additional evidence (treatment records). Called 1-800-827-1000 and let them know this is for CUE and no new evidence could be added. They did say the request to revise is assigned to a rater, so that's promising.

M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions
III.iv.2.B.4.d. Considering Requests for Revision Based on CUE

Quote

Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or his/her authorized representative.

2020-01-09 One week has passed since VARO asked about how to proceed regarding filing using a specific form. Called 1-800-827-1000. They said it is now awaiting a decision. Estimated completion date was moved from May 2020 to February 12, 2020, which is an improvement.

2020-01-17 No change on va.gov. Called 1-800-827-1000. They said it was status 499 (National Work Queue), not assigned to an individual and waiting to be picked up. As of 1/8, it is still "Ready for decision". Estimated completion date still February 12, 2020.

2020-01-21 There was a change on va.gov, but it is a bit different than what I have seen previously. The estimated completion date is still February 12, 2020 and the last status was January 8th, but now it also includes three new lines talking about "We closed the notice for Request 1", "We closed the notice for Request 2", and "We closed the notice for Request 3", all dated Jan 8. This was not there last Friday. I'll take it as a good sign that something is happening.

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I called 1-800-827-1000 to see what these three things are. They said that these indicators were normal, part of what they are doing while clearing things off their checklist. I called my VSO and they confirmed it is "ready for decision", where it has been for the past two weeks. They checked to see if a letter was generated, but one has not been created yet.
  I also found the answer to my question (sort of) about the "We closed the notice for Request #". I just clicked on the "Files" header at the top.

image.png.5cd0de0b87c1d794a58da65780e4ecf0.png

And it showed more information about each request. It's more than what the agent on the phone provided, but it still doesn't give much transparency. For example, "Recent treatment for claimed conditions" was probably the request from the VARO to the VAMC for my medical records. However, because it was CUE, the request was probably not needed because they merely needed to check my claims file.

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2020-01-23 I had to call 1-800-827-1000 to check on something unrelated, so I asked them to give me a status update. The decision was made yesterday and is presently waiting for final review (i.e. approval). Once that is done, it will move to notiification. At that point, a decision letter should be inserted into the system and become visible to my VSO so I don't have to wait for it to arrive in the mail.

2020-01-24 Friday afternoon and I checked va.gov and there was a change. Or was there? it was in step 3 yesterday and is still there today. Maybe sometimes between then and now, it was moved to step 4, but then moved back to step 3. The only visible change is the estimated completion date being pushed out by two days. No big deal. I'd rather they take a couple of extra days to get it right (I just hope they get it right). To satisfy my curiosity, I called 1-800-827-1000 to find out if that was what really happened. The first agent I spoke with was clueless and said they could not tell me anything more than what I saw on va.gov. They transferred me to a "technician", who provided a little more info, but was rather rude and made me feel like I was preventing him from leaving for the day. He said the decision was completed and they are in the process of generating the formal notification letter. He said it should be in step 4 Preparation for notification, but indicated that va.gov and ebenefits may not reflect the current status in realtime. Either way, the estimated completion date was still January 30, 2020, what I can see in va.gov.

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2020-01-27 I guess someone at the VA was working over the weekend. Finally reached step 4: Preparation for notification and the estimated completion date was moved one day earlier to January 29, 2020.

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2020-01-27 Decided to check va.gov before leaving for the day. This confirms what I was told earlier today! Tomorrow, I will ask my VSO to print a copy of the rating decision.

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image.thumb.png.7e419cc94ef0dd7aa5dc7072ae9d49d9.png

 

2020-01-28 Picked up rating decision from VSO. As expected, won one, lost one, but the one I lost will be appealed. They made the exact same mistake as in the original claim.

 

Edited by Vync
Track progress on initial topic post

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1 hour ago, Vync said:

@JKWilliamsSr If given the opportunity for a phone call, I personally always recommend accepting them. About six years ago, I was surprised to get a call from the VARO regarding a regular claim. They wanted to go over their findings and make sure everything was covered. It was a pleasant knowing that I had a chance to ensure they fully understood and handled my request. Plus, if they screwed up and overlooked something, it is helpful to catch their shortcomings before the rating decision is mailed out. Trust, but verify.

Of the two claims I submitted recently, one was 14 pages and the other 17 pages. Those totals included the appropriate VA forms.

 

38 CFR 4.6 by itself is a bit tricky and is very broad reaching. I bolded it in mine too. The catch is how they describe "probative value". The legal definition is "evidence which is sufficiently useful to prove something important in a trial". With CUE, the VA likes to use Russell v. Principi (1992) to reinforce "undebatable", not merely "a disagreement as to how the facts were weighed or evaluated". By itself, it sounds pretty daunting because it seems like it gives the VA a way out to deem nearly any argument regarding evidence from being out of scope. 

I decided to take the systematic approach.

I backed it up with 20.1403 rule 1403 to challenge it based on "the statutory or regulatory provisions extant at the time were incorrectly applied" to show I was challenging it on the laws not being properly applied.

I went ahead and quoted 4.6, but also quoted other relevant statues to help tie it all together.

In my allergic rhinitis/aggravation CUE/HLR, I also quoted 38 CFR 3.322 (aggravation) to point out the last sentence of paragraph (a) "If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction should be made" and to show how they screwed that up.

I showed the very straightforward rating criteria from 4.97 (respiratory ratings) code 6522 (sinus polyps/obstructions).

I then showed their reason for the rating reduction "veteran obviously had allergic problems before entering the service which got worse while he was in the service" could not be ascertained from the schedule. 

Because 3.311(a) was not applied, had they properly followed the law, the rating reduction from 30% to 10% would not have occurred and proved an outcome determinative result (i.e. higher rating).

 

I understand the concept of taking the call and it does make sense.  My problem is the trust factor and it is very difficult for me to get past that.  Taking a phone call may give me more anxiety than it is worth and could cause issues with the call it self.  If I did not provide full details on how I felt the rater did not follow the necessary laws I would have opted for the call.  I gave enough details that if the senior rater actually read it a phone call would not be needed. 

The 2 biggest concerns with my decision are:

1.  Most of the medical evidence I submitted was ignored without explanation

2. All lay evidence was ignore as well without explanation. 

This all boils down to a rater taking my claim and not looking at all the evidence.  While I can't prove it I believe the rater saw that my IME was from Dr. Ellis and immediately decided to reject it.  The rater only cited his IME in denials but in the end the rater made a critical mistake.  The rater put this statement in my denial for diabetes.  "So Although the statement of Dr. Ellis is credible given the medical credentials held, his statement is found to carry little weight as there is no medical document used in order to provide his opinion"  By saying "The statement of Dr. Ellis is credible given the medical credentials held"  the rater is stating that Dr. Ellis is credible and this credibility has to now apply throughout the entire IME report.  I submitted Dr. Ellis Curriculum Vitae when I filed my claim and his credentials is clear.  One of the credentials he holds is that of a "Diplomate, American Board of Disability Analysts"  which means he is a board certified doctor in disability analysts.  He is also board certified in Environmental Medicine and Family Medicine.   Yet the rater gave more weight to a nurse practitioner. 

Oh....and there was plenty of medical evidence to support the opinion by Dr. Ellis the rater just ignore it.  On top of that.  The claim for disability cannot be denied even if it was based on an opinion (Colburn v. Nicholson).  The rater still has to provide a medical basis for denial. 

Edited by JKWilliamsSr

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2 hours ago, JKWilliamsSr said:

I understand the concept of taking the call and it does make sense.  My problem is the trust factor and it is very difficult for me to get past that.  Taking a phone call may give me more anxiety than it is worth and could cause issues with the call it self.  If I did not provide full details on how I felt the rater did not follow the necessary laws I would have opted for the call.  I gave enough details that if the senior rater actually read it a phone call would not be needed. 

The 2 biggest concerns with my decision are:

1.  Most of the medical evidence I submitted was ignored without explanation

2. All lay evidence was ignore as well without explanation. 

This all boils down to a rater taking my claim and not looking at all the evidence.  While I can't prove it I believe the rater saw that my IME was from Dr. Ellis and immediately decided to reject it.  The rater only cited his IME in denials but in the end the rater made a critical mistake.  The rater put this statement in my denial for diabetes.  "So Although the statement of Dr. Ellis is credible given the medical credentials held, his statement is found to carry little weight as there is no medical document used in order to provide his opinion"  By saying "The statement of Dr. Ellis is credible given the medical credentials held"  the rater is stating that Dr. Ellis is credible and this credibility has to now apply throughout the entire IME report.  I submitted Dr. Ellis Curriculum Vitae when I filed my claim and his credentials is clear.  One of the credentials he holds is that of a "Diplomate, American Board of Disability Analysts"  which means he is a board certified doctor in disability analysts.  He is also board certified in Environmental Medicine and Family Medicine.   Yet the rater gave more weight to a nurse practitioner. 

Oh....and there was plenty of medical evidence to support the opinion by Dr. Ellis the rater just ignore it.  On top of that.  The claim for disability cannot be denied even if it was based on an opinion (Colburn v. Nicholson).  The rater still has to provide a medical basis for denial. 

Same boat as you.  Rater took a VA NP's opinion over Dr. Ellis rock solid IME, backed up with medical records review, & stating in service incident that caused the issue.  The denial letter stated 'no records of in service incident' (not true).  Favorable evidence 'Veteran does have diagnosis of lumbarsacoral strain'.  

I took the HLR phone call, and stated what was missed and Dr. Ellis strong IME.  The gentleman was very nice.  Asked when & where in service incident took place.  So we shall see what happens.  Probably stay denied.

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@JKWilliamsSr Yeah, it is a bit difficult to trust the same organization that already screwed things up in the past.

I won an appeal about six years ago where my medical and lay evidence was ignored. All I did was point this out and the reviewer corrected the issue.

i might be wrong in how I read this, but Colburn v. Nicholson ruled that the VARO cannot reject a medical opinion that was solely based on veteran's statements to the examiner. The VARO would have to return the examination back to the C&P examiner for clarification or simply request a new exam. Their explanation would need to be spelled out in the reasons and bases section of the rating decision.

It appears to tie back to The VA likes to apply M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination reports under their requirement "A medical opinion is not properly supported by a valid rationale and/or by the evidence of record."

Colburn v. Nicholson could be a good way to challenge the denial if they failed to request clarification from the examiner.

 

Edited by Vync

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21 minutes ago, El Train said:

Same boat as you.  Rater took a VA NP's opinion over Dr. Ellis rock solid IME, backed up with medical records review, & stating in service incident that caused the issue.  The denial letter stated 'no records of in service incident' (not true).  Favorable evidence 'Veteran does have diagnosis of lumbarsacoral strain'.  

I took the HLR phone call, and stated what was missed and Dr. Ellis strong IME.  The gentleman was very nice.  Asked when & where in service incident took place.  So we shall see what happens.  Probably stay denied.

 

Quote

The United States Court of Appeals for Veterans Claims 
(Court) has held that for service connection to be awarded, 
there must be (1) medical evidence of a current disability; 
(2) medical evidence, or in certain circumstances, lay 
evidence of an inservice incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed inservice disease or injury and the 
present disease or injury.  Colburn v. Nicholson, 19 Vet. 
App. 427 (2006); accord Disabled American Veterans v. 
Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 
2005); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 
2004).  If the veteran fails to demonstrate any one element, 
denial of service connection will result.  

Sounds like the VA believed you had Caluza element 1 and 3, but not 2. It is probably a case where they did a shoddy search through your service treatment records. It sounds like once they verify then you should be good to go.

 

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11 minutes ago, Vync said:

@JKWilliamsSr Yeah, it is a bit difficult to trust the same organization that already screwed things up in the past.

I won an appeal about six years ago where my medical and lay evidence was ignored. All I did was point this out and the reviewer corrected the issue.

i might be wrong in how I read this, but Colburn v. Nicholson ruled that the VARO cannot reject a medical opinion that was solely based on veteran's statements to the examiner. The VARO would have to return the examination back to the C&P examiner for clarification or simply request a new exam. Their explanation would need to be spelled out in the reasons and bases section of the rating decision.

It appears to tie back to The VA likes to apply M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination reports under their requirement "A medical opinion is not properly supported by a valid rationale and/or by the evidence of record."

Colburn v. Nicholson could be a good way to challenge the denial if they failed to request clarification from the examiner.

 

In my case I am pretty sure that the rater did not ask their C&P Examiner for clarification and that is where they lose.  For one I think it is pretty stupid to request a Nurse Practitioner to clarify an opinion that was provided from a Board Certified MD. They definitely did not reach out to my Dr.  On top of that my diabetes claim was denied without a C&P exam. The rater took the evidence I submitted and made their own opinion. 

Edited by JKWilliamsSr
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    • By RBrogen
      Quick question to see if anyone knows what happens if you win a CUE relative to back pay.  Does the VA automatically calculate any back pay based on individual solder and then you have to send them marriage cert, birth certs/ssns to show when you had your dependents added?
      I'm just curious ... not getting ahead of myself but IF I am fortunate enough to win my cue, it would mean back pay for 20 years and would also mean that I would have changed from 20% in 1999 to some higher number.  That would mean that my wife and children would also come into play starting in 2001 instead of 2019 like it is today.  I have all of that data ready but I was curious if they send you a letter first requesting it before back pay is released or if they do the initial backpay at single and you have to make the adjust it.
      Thanks as always,
      Randy
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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
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