Jump to content
Using an Ad Blocker? Consider adding HadIt.com as an exception. Hadit.com is funded through advertising, ad free memberships, contributions and out of pocket. ×
  • 0

CUE


Vet7707
This thread is over 365 days old and has been closed.

Please post your question as a New Topic by clicking this link and choosing which forum to post in.

For almost everything you are going to want to post in VA Claims Research.

If this is your first time posting. Take a moment and read our Guidelines. It will inform you of what is and isn't acceptable and tips on getting your questions answered. 

 

Remember, everyone who comes here is a volunteer. At one point, they went to the forums looking for information. They liked it here and decided to stay and help other veterans. They share their personal experience, providing links to the law and reference materials and support because working on your claim can be exhausting and beyond frustrating. 

 

This thread may still provide value to you and is worth at least skimming through the responses to see if any of them answer your question. Knowledge Is Power, and there is a lot of knowledge in older threads.

 

 

Question

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.

Link to comment
Share on other sites

  • Answers 10
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

10 answers to this question

Recommended Posts

  • 0
  • Moderator

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.

Link to comment
Share on other sites

  • 0

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.

 

Link to comment
Share on other sites

  • 0
  • Moderator

"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.  

Link to comment
Share on other sites

  • 0

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

Link to comment
Share on other sites

  • 0
  • Moderator

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

Link to comment
Share on other sites

  • 0

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 by pacmanx1
Link to comment
Share on other sites

  • 0

His migraines were only service connected for 3 years before they reduced. I did ask for an increase immediately and filed a NOD as to why they reduced it. I have never had a BVA decision. All of decisions have been handled at the Regional level

Link to comment
Share on other sites

  • 0

Depending on the evidence back in 2018 when VA reduced your husband's migraine rating, you can still request a reconsideration or request VA CUE themselves due to restored benefits.  This may or may not get you a grant of 100% back to 2018 but it may restore his benefits at the 30% rating and VA would do a Fenderson rating(Stage Rating )( grant an effective date when the evidence showed he met the 50% rating later but before 2020.)

Link to comment
Share on other sites

  • 0

 <<<<<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.>>>>>>>>

       This is standard fare for VA. I've seen this trick a thousand times. You had a claim going. You're entirely correct. You did not file out of time. What you did was pseudo-abandon a live claim and file a supplemental claim during the pendency of the old legacy claim. In essence, to VA, you abandon a perfectly good substantively appealed (NOD) claim and, while awaiting some kind of adjudication on this illegal reduction, you simultaneously filed a parallel AMA claim for increase thinking you could ride two horses in this race. 

       By filing the supplemental, you "short-circuited " your old claim which was awaiting your grant or denial w/ SOC under the legacy process. Essentially, you agreed with the prior reduction to 0%. You then entered the AMA with the VAF 20-0995 supplemental (abandoning the old legacy claim/appeal of the reduction) and  began a new one on 1/02/2020. Your DBQ from your doctor was dated 2/20/2020 which now becomes the "first time" VA ever heard about it that he had presented new and relevant medical evidence qualifying him for 50%.  

        In my opinion, the repair order is to file a VAF 10182 (VA calls it a 10-182) NOD with the BVA asking for direct review and explain that you never meant to short circuit your original claim for headaches. You always are presumed to be seeking the highest and best rating  (AB v. Brown 1994). If you were pro se, a VLJ would grant this in a heartbeat. Comer v. Peake says it best in a brief to them:

 

The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . 
a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 
(2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). See also Gallegos v. Gober, 283 F.3d 1309 
(Fed. Cir. 2002) (assuming that the Veteran desired appellate review, meeting the requirement of section 38 C.F.R. 
§ 20.201 was not an onerous task). See, too, Acosta v. Principi, 18 Vet. App. 53, 60 (2004); Beyrle v. Brown, 9 
Vet. App. 24, 27 (1996); Hamilton v. Brown, 4 Vet. App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 
(Fed. Cir. 1994).

       The VA nowadays uses the NWQ to ship your claims all over hell's half acre. When things go haywire, the finger pointing begins. You will never get it straightened out via an HLR or, for that matter, anywhere in the regional NWQ system. They're paralyzed from the neck up since February 19th, 2019. VA just bounced me last month (February) for forgetting to check the opt-in box (in box 13A) causing my 995 to be "construed" as a VA 9 substantive appeal in Legacy. I got it changed within the 60 days but I had to fight to overturn it 4 times. 

      Here. someone has purposefully ignored your viable substantive legacy appeal and misinterpreted your intentions in order to deprive you of the lawful EED. This was no accident.  Please notice your effective date  is the same as the DBQ date (in blue) officially announcing your evidence now proves entitlement to that effective date but no earlier. I hope that helps. 

Edited by asknod
Link to comment
Share on other sites



  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. 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.
       
    2. Knowledgeable 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.
       
    3. Use paragraphs instead of one massive, 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.
     
    Leading too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a 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 of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines