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Hi there, Recently actually yesterday the 21st of February the VA gave me notice that my supplemental claim had been decided and that they had sent out the letter that morning as well (meaning the decision was actually made on the 20th). This of course prompted me to check Ebenefits, where I saw no change in my rating. I'm currently rated at 40% for other issues. And in the past Ebenefits updated almost instantly leading me to believe that this supplemental claim was denied. I originally submitted my Epilepsy claim back in august, it was denied about 4 months later due to conflicting phraseology given by one of my doctors (mind you i still have a diagnoses of Epilepsy with 15 witnessed Grand Mal seizures at this point). Once i got the original decision letter I contacted my County VSO's office and set up an appointment. After they reviewed everything they we surprised that my claim was denied as it has a clear nexus and on top of that falls under the conditions; that if they manifest within a year its considered service connected (I separated 02/01/2019, first seizure onset was 05/25/2019). They did review the 112 pages of evidence from my civilian doctors and did see the conflicting phraseology. They told me that if I could get my Neurologist to just confirm my diagnoses and say i was and have been under treatment since 05/25/2019 that we could submit a supplemental claim since that's the fastest route. So that's what we did. That brings us to now. Under the standards for Epilepsy I was looking at a single rating of anything between 80%-100%. An 80% from 40% would have resulted in something Close to 90%. While i'm holding out, since in either case the retro pay (if my claim was awarded) would be greater then 20K that the additional signatures required are slowing down Ebenefits from updating, but as in most cases if the letter has sent and Ebenfits doesn't updated, 90% of the time you Claim/Supplemental/Appeal is denied. ( I mean correct me if I'm wrong). Whats the moral of the story? No matter how much evidence you have to support you the VA will be the VA. I'm lucky that I'm rated for other conditions so that I can at least have the VA help me cut down on the costs of treatment for Epilepsy, but it would have been nice to have it service connected so that I wouldn't have to wait months on months for Neurology appointments since I don't have priority. If any one has any information for me that might help moving forward, I'm all ears as once my letter is received and upon reading of the denial ill be filling an appeal.
I’ve done the VA claim-bit on my own. I don’t know if this is a mistake or not.
I went to a c&p exam recently. I left somewhat confused. I never had a doctor tell me directly that she was recommending an increase as well as IU. She said though it was ultimately up to the rater. I don’t have her report because 30 days has not passed. I was at 50% for ptsd and 10% hearing loss. During the appointment the c&p doctor quoted a couple other reports where VA doctors I’ve seen at various clinics said that I had “long term, chronic and severe...” (Don’t want to get into the what). I find myself now obsessing if:
1. The c&p dr was lying to about her recommendations;
2. The c&p dr was telling the truth about the recommendations;
3. The rater will decrease my %
4. The rater will increase my%
Ultimately it boils down to: How much weight does the rater put into the C&P dr recommendations? Could I really get IU if that dr did actually recommend it? what are the chances? The IU could help a lot, I’ve not been able to work much the past few years.
Did the VA make the same CUE twice? Please offer your opinion.
In my CUE, I asserted the VA failed to apply:
38 CFR 4.40 Functional Loss 4.45 The Joints Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion)
Here is the rating decision denying CUE:
The VA acknowledges that a loud click was heard and painful motion started at 29 mm (falls in the criteria for a 20% rating)
Again, the VA failed to apply:
38 CFR 4.40 Functional Loss 4.45 The Joints Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion) Do you agree that the VA again failed to apply these laws?
Should I have been granted a 20% rating?
I wanted to ask about something else I am considering adding. In Nov 1997, I had a C&P exam which was lost, but I later found it in my claims file. It is never mentioned - ever. What's great is in the second C&P exam, the doctor stated material from the first exam was "misplaced".
1. C&P examiner stated (in exam #2) that this material from exam #1 was misplaced (that's a CUE just by itself)
2. Dictionary definition of "midway" is "halfway"
3. Simple math: 35 mm divided by .5 (half) is 17.5 mm.
4. The DeLuca factors would confirm limited motion began at 17.5 mm.
Would a reasonable person to come to the conclusion that limited motion began at 17.5 mm?
Or would this be considered weighing of the evidence? I tend to disagree because this evidence was never weighed by the VA. Also, my interpretation uses objective facts (35 mm, midway meaning halfway, and common math). There is no attempt to weigh evidence.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.?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.?
Vync posted an answer to a question,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?
Buck52 posted an answer to a question,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.
Picked By66 bricks,