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CUE claims


Eddie_H
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I had a lawyer help file a cue claim for back pay i should have recieved when i got my r1 rating in 2004. That claim got denied because because they didnt bother to read my ratings from 2000 when i was medically retired. I got the rating in 2004 because the pva had a doctor put loss of use of lower extreminites due to no balance and weakness. The thing is my 2000 rating states i failed the Romberg, heel to toe and heel to shin test that is for checking for balance. It states i have to use a cane and i fall alot. It also says i have to use my arms to get out of a chair which is almost word for word for loss of use of both buttocks. How can i appeal it again and make them look up what test i failed to prove i had  no balance back in 2000. Its frustrating that its there in black and white but they denied me benifits for those 4 years that i was entitled to because someone is to lazy to look things up.

TIA

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You can file a CUE on a faulty CUE decision.

I did that with two CUE awards I got because they were still wrong.

They fixed one but that is still wrong so I filed another CUE that is pending.

Can you scan and attach the denial here as to the Evidence list and their rationale for denial?

Cover C file #, name, etc.

How can i appeal it again and make them look up what test i failed to prove i had  no balance back in 2000. Its frustrating that its there in black and white but they denied me benifits for those 4 years that i was entitled to because someone is to lazy to look things up."

You might have basis for a re open under 38 CR 3.156. Searchable here.

Or a valid CUE on their denial. Or under both theories of entitlement. 

We have plenty of info on CUE in our CUE forum as well as on 38 CFR 3.156. 

 

"because someone is to lazy to look things up." That is why WE must be proactive and "look things up" and send them anything we have  that advances the claim.

What did your lawyer advise too do over the dennial?

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My Lawyers reply was they always deny the first attempt. So i fired him and gonna do it myself. I will scan and post thier rational for denial, plus the proof thats in my ratings.

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Here is my denial letter plus my 2001 rating stating i met the need for aid and attendance and homebound. But i didnt get my r-1 until 2004.

 

https://drive.google.com/file/d/1vt18wlxvAJDlJjrpSziJMLbAwxY8Iodq/view?usp=drivesdk

https://drive.google.com/file/d/1w-3wD821XLPbOkLT9l5BN0BCfnZK1VP1/view?usp=drivesdk

 

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A and A and HB are different from R-1.

There is not enough info here to determine if they made a CUE in 2001. The 2001 decision is what you need to seek CUE on.

I am glad  you are willing to "do it yourself."

We have plenty of CUE info here in our CUE forum.

If  documented medical evidence ,that was in VA's possession by time of the 2001 decision, warranted R-1

(those requirements are here in the SMC forum)

you could have the basis for a valid CUE.

We have many CUE templates here as well and I even prepared one here for someone the other day. Because it was an easy prime facie short and sweet CUE and only took me mere minutes to write for them.

Yours is a different situation.

One of my CUES was for SMC accrued ( my husband is dead) but that also was as easy as pie to write because the rating sheet clearly revealed he was eligible for SMC consideration.The Nehmer VARO awarded it  after it had sat at my VARO for almost 8 years, with ridiculous rhetoric from the VA. When Nehmer 2010 happened , I contacted them right away on my AO IHD death claim, as the SMC CUE and another CUE ( still an open issue since 2012*) were contingent on a proper AO IHD award.

 

 

* Part of my pending  IG complaint and audit requestin process)

My other CUEs went faster than that.

And some here have succeeded on CUE.Even in the appeal period.

One of their most prominent legal  errors ( I used this personally many times in my own CUEs) is violation of 38 CFR 4.6 and I have an article here , "The Power of 38 CFR 4.6) that I hope you read.

 

 

 

Edited by Berta
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While I have deep respect for Berta's opinion here, I respectfully "dissent" from her opinon, above.  

I dont know your reasons for hiring a lawyer.  Im sure, however, they were valid and you carefully weighed your options.  

IF you have all the following, ONLY THEN can you work a difficult claim yourself, especially CUE:

1.  You need to have excellent research skills.  You need to know how to search and be willing to read BVA and CAVC cases.  And, be willing to understand how those apply to you. This probably means you are an excellent reader, and have at least an above average vocabulary to understand decisions.  It probably wont work to look up every word you dont know the meaning of, unless you are amazingly persistent.  

2.  You need to have resources.  For example, you need a home address, a computer, internet and the money to pay your own postage (usually best certified mail return receipt requested).  You likely will have other expenses.  You may have to pay for copies of documents such as medical records, where they sometimes charge for that.  You may need to pay up front for an IMO/IME.  This could cost 1000 or more dollars.  You may have to travel for a hearing, and pay for that.  And, buying a VBM for 200-300 dollars is a must, in my humble opinion.  Mine is old, (2014)  and I need a new one, as the new ones come out every year.  

3.  You need to have time.  If you are too busy, it wont work.  

4.  You need to have motivation, to see this to the end and not give up.  

5.  You need to be organized, at least good enough where you can file and retrieve important documents.  

6.  You need to be healthy enough to see this to the end.  

7.   You need to be persistent and determined as it will likely not go quickly.  

     Only if you meet all 7 of these, would I recommend you work it on your own and fire your lawyer.  If you are not healthy, not motivated, not persistent, not a strong researcher or reader, and dont have the resources, you probably should stay with your attorney.  I agree that its normal for VA to deny the first time.  I am suprised you took on an attorney so early, and many wont even consider CUE, as those are low percentage cases "except" with a Cue expert like BERTA.  Very few have her skills.  I certainly dont.  Berta has all these skills I listed..and more.  I understand she used to be a paralegal.  That is an excellent background.  And her persistence and motivation are legendary.  I won my case only after hiring an attorney.  VSO's couldnt do it, and I failed multiple times.  Because I hired the attorney at the right time (after a board denial), it cost me very little.  In fact, the attorneys MADE me money.  

     All this said, since Berta is helping you THIS is a huge deal.  But, there are things even she can not help you with.  She cant help your health, nor can she help with resources if you lack them.  

Edited by broncovet
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Broncovet- thank you for this post- I hold back on adding many CUE question replies , here, because I  want to say, but hesitate to say-

" you have to like to read, and be willing to do lots of research on CUE."

You said it for me.Also I have seen many here over the years ( to include our beloved Carlie)to get too involved with CUE and hers was quite convoluted.I dont know if she even filed it before she died.

I got the impression that the lawyer might not be on the POA any more.He/she should have helped file a NOD and appeal as this is involved a medical retirement.

"My Lawyers reply was they always deny the first attempt. So i fired him and gonna do it myself"

I had a lawyer help file a cue claim for back pay i should have recieved when i got my r1 rating in 2004. That claim got denied because because they didnt bother to read my ratings from 2000 when i was medically retired."

Apparently you then used the PVA, as POA?

When did this lawyer last have contact with you?

Does the PVA still hold your 2004 POA?

 

 

 

 

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Thank you Berta.  I agree they have to like to read and research CUE.  But they also have to be motivated.  Many times hadit members help with motivation.  We can, and do, often encourage each other to "keep going", in the many years (sometimes) that it takes and not quit.   I felt like quitting multiple times, but I hung in there and pretty much won everything I asked for.  The only thing is my effective date of SMC S, and Im deciding if I am motivated enough to keep fighting them more for that.  I may let that one go.   I dont have to have "every" fish in the pond for supper.    

Edited by broncovet
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Thanks for the replys,

I hired a lawyer first because when I went to my local PVA he said I couldnt file since it was over a year. So since then i have read every regulation, court dockets and everything i can find about SMC. Its the proccess of applying and appealing is where i struggle with. I know what im entitled to and im not giving up until i get it. I am actually entitled to R2 from the begining, but want to get the backpay for where they missed the loss of use first because its easy to prove. I have medical records that states that my left hand is non functional and that family members have to catherize me when i left the hospital. But the C&P examiner never asked or I never thought to say either. I had no idea about ratings in the begining, i was just glad that I was still alive. 

 

The PVA is still my rep now, but I think i know my case well enough to do it on my own..

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I need to correct something here-I worked for lawyers for many years but am not a paralegal.

I am, however, a Pro Se attorney and never lost a case.I represented myself under FTCA and loved dealing with the VA OGC in DC. - their lawyers know 38 USC in and out- unlike our ROs they LOVE evidence and will read it all,and they were tough but as I recall the lawyer who I settled with  said I was "too tough" too. You bet I was.

A Pro Se attorney means I am my own attorney, and have been in many matters that usually require an attorney.

However I have an attorney , as a member of the bar, for my will and real estate matters.

My 'help' to anyone is limited here to my time, and the fact is that everything I know about CUE is here as well.

Broncovet said:  "You may need to pay up front for an IMO/IME.  "

I have been trying to think about that. I never suggest IMOs for CUE claims.

The medical evidence must be in VA's possession at time of the alleged CUE.

An IMO would come after the fact.Not in VA's possession at time of alleged CUE.

Maybe an IMO that raises the same Legal points ,in the CUE -if you file one- as legal errors in interpreting the actual medical records and evidence,regarding the past denial would work , maybe, but personally I would not pay for an IMO for any CUE claim. I don't think I have ever seen that done but will check the VBM when I get time.

If the VA however violated 38 CFR 4.6 regarding any private records , they had but did not properly consider, maybe that would be a case for an IMO...from the same doctor....IF they denied the claim, after obtaining those private records, but not considering them.

"I hired a lawyer first because when I went to my local PVA he said I couldnt file since it was over a year."

I guess you mean the NOD appeal period had passed- but the PVA has the same options we talk about here:

1.Re opening the claim with New and Relevant evidence.such as an IMO/IME

2. Filing a 38 CFR 3.156 claim - you did have a military  medical discharge ???-or did you mean you retired for other medical  reasons....a possible 3.156 claim  maybe ..... but not enough here to know....or even guess.

3.CUE- the PVA could have suggested CUE. Or suggested to re open, and if you are successful with a re-open, ( they will give you the re open date as the EED, on a successful re open,) then you can file a CUE on the original denial.

Everything I know is here on CUE but will try to find something about IMo for CUE- I have never seen an IMO award a CUE.Except for my own CUEs- whereby a VA Central medical opinion - VA -NOTprivate doctor, awarded the CUE.That  VACO opinion had been established in the record since 1997, but the VA listed it but denied the claim.

I whipped out a CUE and mailed it the next day. VA reversed and  I got an award letter in 3 weeks.

I am still pissed off about it- the veteran, my husband,  is dead, so he cannot speak for himself.

He had a piss poor posthumous C & P exam, and their VA doctor didn;t even know he was dead and said it was an inperson exam. I raised Hell about that and she changed the 'inperson exam' statement.

My VARO tried to ignore a VACO exam by VA's top Cardio doctor, still employed by the VA. 1997 -it was still probative to this more recent claim.

I know more about cardio then the VA C & P doctor did. I checked her out good. All she does is do intake paperwork for the AO registry in Buffalo VA.

Luckily she does not diagnose or treat  VA patients.She probably was found to be negligent in her VA health care to vets in the past. They don't fire all negligent doctors, they just move them somewhere else, or to a different job.

All of their Posthumous C & P exams were ridiculous . I overcame them with evidence and only in my AO DMII claim did I need IMOs.I just do not think an IMO would work for a CUE.

I knew my IMO cash was a great investment, for my AO DMII claim ,because my evidence was solid.Undiagnosed, untreated diabetes mellitus-not filed under 1151 but under direct SC death. I won that at the BVA. I had no time with college, to dick around with my RO anymore and was patient for that award to come. It was a lot of work studying diabetes Endo stuff, the 6 page autopsy, 6 or more  years of VA medical records, etc and then switching to tactical warfare maneuvers  and Command orders  , Military battle analysis,   for homework, the same day,  and then  being here too.

The BVA has no personal agenda, like my incompetent RO , who even tried to make up a regulation to deny my SMC CUE. I asked them to produce that reg  and of course they couldn't. Someone there ( maybe a vet rep whose office was in the same RO building told me it is like the Cheers bar- everyone there knows my name.

But I still think it is that billboard in Buffalo ( funny story  but I explained that before here)

The BVA can and will read EVERYTHING.

 

We have some SMC experts here as well, for claims higher than SMC 1 and 2 and A & A.

 

 

 

 

 

 

 

 

 

 

Edited by Berta
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