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CUE


glenda h
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Kinda tossing around if I actually have a CUE from a 2007 C&P.  Back then your records wasnt on file so you didnt know what was in it and had to depend on what the rater stated.  I got a copy of my Cfile recently and learned that the C&P I had, the examiner stated he did not have my VA records, nor the civilian Dr info I submitted.  Yet in my cfile the civ info is date stamped by the VA mailroom.  I had requested an increase in GERD from noncompensable given in 1998 to compensable to include the gastritis with H pylori again, something I had in service as well that was ignored in my initial exam.  I was only approved for 10% for GERD with small hiatal hernia.  Ive held this rating for over 12 years.  I recently Jan 2019 had another ECG which noted erosive gastritis, no h pylori. and class C esophagitis, a medium size hiatal hernia.  So I filed for an increase.  Instead of increase, or just stay as it is, they made it Noncompensable effective the date of an ACE!.  Again no mention of my gastritis. Did not even include on the form that I had a hiatal hernia.    I had filed an initial claim for a different disability in Jan, the request for increase of GERD I completed 6 Mar.  They stated online that they combined these claims together. The ACE done on 27 Mar.  No notice was sent that they were going to reduce.  I didnt know of this until I received my SOC 28 Aug.  I do have an appeal for this last one at the BVA.

"           Poor records mean poor defense, no records mean no defense"

 

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You have several questions: 

1.  Is it a CUE?  Well, we dont know, but the c and p examiner "not having your records" is not a cue.  There may be a cue, but that would take a review of your file.    But that does not mean you will necessarily lose on appeal.  

2.  If they reduced you, WITHOUT sending you a notice of proposed reduction, this should be reversed on appeal.  The VA must give you notice of a proposed reduction, and if they dont, it should be void ab initio upon appeal.  

    Do you have a representative?  VSO?  Did he give you VBMS access?  We can give better answers when we have better information.      

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On 2/24/2020 at 5:25 PM, glenda h said:

Kinda tossing around if I actually have a CUE from a 2007 C&P.  Back then your records wasnt on file so you didnt know what was in it and had to depend on what the rater stated.  I got a copy of my Cfile recently and learned that the C&P I had, the examiner stated he did not have my VA records, nor the civilian Dr info I submitted.  Yet in my cfile the civ info is date stamped by the VA mailroom.  I had requested an increase in GERD from noncompensable given in 1998 to compensable to include the gastritis with H pylori again, something I had in service as well that was ignored in my initial exam.  I was only approved for 10% for GERD with small hiatal hernia.  Ive held this rating for over 12 years.  I recently Jan 2019 had another ECG which noted erosive gastritis, no h pylori. and class C esophagitis, a medium size hiatal hernia.  So I filed for an increase.  Instead of increase, or just stay as it is, they made it Noncompensable effective the date of an ACE!.  Again no mention of my gastritis. Did not even include on the form that I had a hiatal hernia.    I had filed an initial claim for a different disability in Jan, the request for increase of GERD I completed 6 Mar.  They stated online that they combined these claims together. The ACE done on 27 Mar.  No notice was sent that they were going to reduce.  I didnt know of this until I received my SOC 28 Aug.  I do have an appeal for this last one at the BVA.

"           Poor records mean poor defense, no records mean no defense"

 

Here is the thing, at this point forget about a CUE claim. You state that you do have a current appeal at the BVA.  Make sure you bring up any disagreements without mentioning a CUE claim.  The appeal, if granted will result in the same outcome.  Make sure you had met the rating criteria for hiatal hernia.  A CUE claim can only be ripe after a claim has become final.  Now if you had SMRs added to your C-File  after a decision was made, you may have a CUE claim but it depends on what the evidence is/was and what if anything it proves/disprove.  Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding. Check out 38 C.F.R. 3.156.

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"Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  

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