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I've decided to take a crack at creating a CUE and Benefit of the Doubt failure for a claim that was originally denied in 1988, but finally approved in 2014. And, I currently have a pending NOD on the effective date of said claim.
I would be so grateful if anyone could view my CUE and original claim denial. My question is this, am I on the right track with my CUE? I have been developing my CUE using language based on an actual citation by the BVA awarding a CUE to a veteran for the same condition and circumstances in which mine was denied and quoting Title 38. It's so easy to get confused with all of the information out there.
So any advice will be greatly appreciated. I have uploaded my CUE in development phase and original claim denial.
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.
My thanks go out to everyone here on hadit.com! In September 2019, I filed two CUE claims. One was granted and the other was denied, but will be appealed.
In 1995, I filed a claim for rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522) and it was granted on appeal in 2000 due to aggravation of pre-existing disability. 30% was awarded, but it was reduced by 10% to 20% due to the C&P examiner's opinion: “OPINION: In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service…” After fighting for five years, I was elated and took the VSO's advice not to rock the boat.
In 2009, I found hadit.com and began educating myself. I always felt something was not quite right and began researching this issue. I was still worried about rocking the boat, but in 2019 I finally got the courage to move forward after having a heart attack and realizing life is short. I performed extensive research and filed the CUE claim in September 2019. Because of the ridiculously strict CUE rules, I was required to use laws in effect at the time the rating decision was made, which were found in old copies of the Federal Register. Another challenge was boiling it down to just the facts, removing emotional factors, and presenting the error from the perspective of a reasonable person (i.e. 8th grade reading level, if that).
The VA failed to properly apply this pivotal law from 1961:
Two key factors apply:
1. VA must determine the level of disability existing at the time of entrance into active service
2. If the VA cannot determine the level of disability existing at the time of entrance into active service in terms of the rating schedule, they are not allowed to reduce the rating.
I then looked up the rating criteria in effect in 2000:
My entrance exam was "normal". The C&P found polyps to justify the 30% rating. Can "normal" be ascertained in terms of the rating schedule? No.
Other than including a copy of the evidence, relevant laws in effect at the time, and showing how the VA failed to follow the laws when making the decision, this summarizes the entire situation:
After the VA received my CUE packet, it took them 127 days to complete the request. Six weeks were wasted by the VA requesting copies of relevant medical records from the VAMC, despite those records already being present in my claims file. Considering the fact that my claims file was partially scrambled and even contained other veterans documents, I kind of don't blame them for re-requesting the records so they have them contiguously. One week was wasted by someone at the VARO asking if a CUE needed to be submitted on a specific form (as of today, not required per M21-1).
As for my other CUE, it was for TMJ and failing properly apply DeLuca and ROM laws. The rating decision contained even less detail than the original decision. In effect, they made the exact same error again, so I will be appealing.
Tbird posted a question in VA Disability Compensation Benefits Claims Research Forum,How to get your questions answered...
All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.
Tips on posting on the forums.
Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.
Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.
Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.
Post clear questions and then give background info on them.
A. I was previously denied for apnea – Should I refile a claim?
I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?
B. I may have PTSD- how can I be sure?
I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.
Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.
This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
brokensoldier244th posted a question in VA Disability Compensation Benefits Claims Research Forum,Exams that were being sent strictly to contractors before, due to VAMCs not being open, are starting to be routed back to VAMCs. This is going forward from last Friday- not sure if prior scheduled exams will be re-created for VAMC vs vendor.
Picked ByGlobal Vets Consulting,
Mere speculation in your VA C and P exam
M21-1, Part III, Subpart iv, Chapter 3, Section D – Examination Reports III.iv.3.D.2.r. Examiner Statements that an Opinion Would be Speculative Pay careful attention to any conclusion by the examiner that an opinion could not be provided without resorting to mere speculation (or any similar language to that effect). VA may only accept a medical examiner’s … Continue reading
Tbird posted a question in VA Disability Compensation Benefits Claims Research Forum,A favor please - just changed servers so if you have a moment go to https://www.hadit.com I'd like to see how the server handles a lot of traffic. So if you have a moment click the link and i can see how things are going on the back end.
Tbird posted a question in VA Disability Compensation Benefits Claims Research Forum,It's time to ask for help from the community. If you can help with a gift it would be very appreciated.
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