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Question On Possible Cue Claim

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Ricky

Question

I need some help please. In July 01 I submitted a claim for joint pain of hands, elbows, knees, shoulders and hips. In December 01 VA denied the claim based upon their claim that I did not show for a CP in Sep 01. I sent NOD because I did go to Sep CP at which they conducted an exam on my eyes. When I went back to CP check in station I was told that was it and I would be notified if they needed anything else. As a result of the NOD VA scheduled a CP in Dec 02. In Mar 03 claim was denied on VA claim that the CP did not show any loss of function and that Pain was not a disability.

In Apr 03 submitted VA Form 9. In Mar 04 checked on status of claim was told that no appeal was ongoing and I needed to contact RO. After sending the RO a letter asking why appeal was not processed they stated that the VA form 9 was not submitted in time and the claim was closed. They further stated that if I requested they would use the form 9 to reopen my claim. I submitted this request in writing and RO responded that claim was now reopened.

In in May 05 I had to go to another CP. At the CP they only dealt with my other claims which the previous form 9 indicated that I wanted to appeal. In Jul 05 the claim for joint pain was denied cause VA claimed that I had not provided any new and material evidence. Once again I submitted a NOD. In preparing the NOD I once again reviewed my copy of my SMR's. In Nov 98 and Jan 99 my symptoms were diagnosed as fibromyalgia. I attached this to my May 05 NOD as new and material evidence (VA had never refered to them in the previous denials). Also in the May 05 NOD I provided copies of the Persian Gulf War Veterans Act of 1998 which provides presumption of SC for chronic multi-symptom illness to include fibromyalgia.

On 6 Oct 05 I received a VA letter asking if I wanted a DRO De Novo or formal appeal (I thought my 8 page NOD requesting a DRO De Novo was very clear as to what I wanted). Any way in the letter they asked that I submit any additional evidence for the other disabilities covered by the NOD. However, on the joint pain they stated that the claim had been denied because I did not report for a CP and failed to submit any new and material evidence concerning the previous denial due to missing a CP therefore, the claim for joint pain remained closed and would not be reopened until I submitted New and Material evidence concerning the CP.

Now - the Dec 02 CP for my joint pain was in the claim folder proving that I had undergone a CP for this claim; the SMR's providing the diagnosis of fibromyalgia was in the claim folder, They know that I am a Gulf War Vet; the Persian Gulf War Veterans Act of 1998 provides for a presumption of SC of fibromyalgia. Based upon these facts does this equal a CUE? If so should I claim cue in my now 8 page letter explaining my 8 page NOD? or should I once again explain it to the dummies, let them deny the claim once again on lack of new and material evidence and then claim cue during the formal process?

Same with my stroke - had stroke in Feb 05 secondary to hypertension. Submitted claim in Mar 05. In May 05 CP doctor said stroke in Feb 05 caused loss of function/muscle strength, central pain syndorme in left face, arm, leg foot, constant pain - no meds available to relieve pain messed up gait, stand 3 mins etc.......

Rating schedule states that stroke is to be rated 100 percent for six months - then residuals rated seperatly.

My current Rating decision denied 100 percent for six months due to no Recent or Active disease. Rated centeral pain syndrome as 10 percent (this should have been rated for face, hand and foot as rating schedule calls for.) I feel that they failed to appropriately apply the regs by denying the 100 percent for six months due to no Recent or active disease. Hmmmm. stroke in Feb 05, claim submitted in Mar 05, large write up by VA doc in May 05 CP about the problems caused by stroke. Was I supposed to tell the emergency doctor to stop what he was doing and notify the VA immediately in order to quailfy for the needed "recent or active disease" requirment? The rating schedule states "Stroke (CVA) rate at 100 percent for six months" then rate residuals minimum 10 percent". Any advise before I go completely looney would be appreciated.

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Ricky

Since you seem to have a good grasp of 38 CFR, I would suggest that for all the problems cited with an obviously ignorant RO, you provide 38 CFR references, and push for the DRO review.

The other alternative is to keep that as rebuttal for when you get a DRO review, which would be best if you requested it as a DRO hearing. That will take longer to set up than a straight rview, but MIGHT give you the best chance of convincing the DRO that the RO obviously doesn't know their regulations.

That's my opinion!

Edited by wallyg
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sounds like MY RO-

the stroke- is this service connected?

You made some excellent points here that have to be made to the VARO-

This is not a CUE situation as you are still in the appeals process.

I think you should try to get a copy of the C & Ps and get the name of whoever told you that there was only the single C & P scheduled that day-

The VA should should record somewhere of what C & Ps you were scheduled or not scheduled for-

I think it is important because this will affect your EED- earliest entitlement date-

Do you possibly still have the thing VA sends as a reminder of a C & P exam?

Have you looked in your c file to see if it is there?

You are right on the fibromyglia- is the VA properly reading the medical diagnosis of that?

I think they are missing something-

on your denial letters- under Evidence- does it really cover all that it should?

I am going to re-read this- and might get back to you-

no CUE basis but they seem to be screwing around with

Duty to Assist-

WHat VARO is this? Berta

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