CUE

[Vet7707]

Looking for help to file a CUE for my husband for EED. Husband was recently awarded 100% P&T with his increase to 50% for headaches but was only awarded back pay from 1/20. Date should go back to 1/18 as I never let an appeal go past the one year mark when they lowered it to 0% for no reason. I even looked and saw all the documents showing His headache log and medical evidence from VA stating that he was suffering from migraines and the frequency had increased. Not sure if we should do CUE when clearly the RO used the wrong date which cost us lots in retro or do a HLR. Our Regional is Reno. Any help or ideas would be appreciated. God bless.

[GBArmy]

Vet7707 I don't think CUE is the proper action right yet. I think you are saying he is now rated at 50% and that the VA dropped his rating to 0% from some rating (?), then the current award of P&T and that was the date they used for EED which was 1/20. They most often assign  EED as the date of submittal or, finding of facts, whichever is later. It can get complicated. Create a time line and submit a HLR claim first and see where that gets you. A claim has a 12 month period to appeal, as you know. A CUE doesn't have any time limits but is much harder to approve, and once you lose, you can't appeal again. Work the HLR first. Remember, no additional evidence for that option.

[Berta]

The maximum rating for migraines is 50%.

https://cck-law.com/blog/50-percent-va-disability-migraine-headaches/

Another disability must have triggered the 100% P & T.

I agree with GBArmy but then again, we have not seen the decision.

Can you scan and attach the decision as to their evidence list and their rationale on the award and the EED they gave ?

Cover his C file #  and name etc, prior to scanning it.

 

[broncovet]

"If" the VA reduced your benefits and did not use the proper method, then that is CUE.  VA has to give 60 days notice in a proposed reduction.  I agree with Berta, we would know more and give better answers if you post the decision.  

Effective dates is one of the most complex areas of Veterans law.  Two years potential retro of 100 percent (going from zero) is around 70,000 dollars so dont let this go.  There are several routes to take, and they depend on the circumstances, especially the decision.  

A HLR is rarely productive.  To win this you will likely need either a board appeal, a resubmission due to new evidence 38 cfr 3.156, or a cue.  We can not tell at this point which.  

[Vet7707]

I apologize for the vagueness it was late. Secondly, THANK YOU for the quick responses and I am forever grateful for platforms like this as it has helped me tremendously to help my husband. To give you a little more background: My husband was medically discharges for maculopathy and was rated 30% upon that medical discharge. He also while in the Army had an Aortic Aneurysm repair and was placed on medicine at that time. He continues to be rated 0% because VA states that he has no residuals except scars. Fast forward, I took over his VA appeals because like most he was frustrated. After looking through all of his files which he had, I discovered a plethora of things he should have been claiming. Anxiety, migraines, knees, spine, and back issues among other things. We started out at 30% from 2001-2015. I opened his case back up at that time and started filing. We moved from 30% to 80% due to research on this site and others. We used NO attorneys or VSO help. This has NOT been an any task but it is so worth it. To bring you up to speed, I filed for an increase for my husband’s knees and back due to things not getting better. In Jan 2018 they provided an increase for those items but lowered the % for migraines to 0% without a warning or exam. I immediately fled a NOD. They had continued to deny his increase even with his headache log, statement, medicine history and doctor and neurology notes in the system submitted by me. Sep 2019 we received another no answer and I filed a supplemental claim for headaches among other issues. It was filed 1/2/20. He had his C&P exam 2/20. Doctor wrote DBQ to get him increase. Doctors stated to husband he should have never been decreased based on what he saw in records. My husband was granted 50% for headaches 4/6 which put him over the top for 100% T&P from the 90% he was granted after a DRO revealed he should have bee rated higher earlier..

 

GB Army I was thinking of the HLR review first as well but have been watching Berta for years provide valuable advice on CUE so really we were not sure.

Thanks again for all that you do to help others!

Haddit Attachments.pdf

[GBArmy]

Vet7707 Berta is tops and if that is what she suggests, I'd follow her advise. But that said, EED is a LOT easier to get where you want to do and it just doesn't cost you anything. If you get it back to where you should, that's great. If denied; you can always do a CUE. No time restrictions. I'm not saying the light bulb is going to go on if you get a decent senior rater, but if you word it briefly but clearly, they will see it was a serious error and MAYBE do the right thing. My point is it is a free swing and it is something that could work. IMHO.

Good luck

[pacmanx1]

How long was your husband's service connected for migraine headaches? Was it over five (5) years?  Did you file for an increase for migraines in 2018?  Did you get a BVA decision?

The problem maybe that you withdrew your appeals.

You can ask VA to CUE themselves or you can ask VA to reconsider this decision if it is a result of restored benefits.  When a veteran files for an increase and VA decrease their rating it is called a Mischaracterization of the Issue on Appeal.  

Edited April 14, 2020 by pacmanx1