CUE claims

[Eddie_H]

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

[Berta]

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?

 

 

 

 

[broncovet]

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 March 19, 2020 by broncovet

[Eddie_H]

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..

[Berta]

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 March 19, 2020 by Berta