I think I have a CUE but unsure how to proceed.

[spazbototto]

I was service connected for Herpes simplex dermatitis in 2022 for 10%, after reading the decision letter & CFR I was very confused on the diagnosis they gave (erythema multiform) and requested my C-File right away. After receiving the C-File the skin DBQ the Dr. never checked erythema multiform and the ICD10 code he used was herpes simplex virus unspecified. So, I did some more digging, in my research it appears the rater was using an old policy prior to 2018 and coded this as 7899-7827 opposed to what it should have been coded as under the general rating for skin and given a rating of 60%. Further, the rater didn't even use the skin DBQ or IMO! As that was not listed in the decision letter-only the appointment with the optometrist (which was another C&P exam the following week). 

I submitted a Higher-Level Review in July 2023 stating I was not submitting new evidence and explained the issue (via a 4138) that the coding is incorrect per the CFR and the favorable exam, waited over a year and the HLR was “confirmed and continued” (this time they did list the skin exam as evidence so I knew they had it) -they also did not accept my statement and labeled it "new evidence". I immediately opened a supplemental stating the same information and they sent me to a un-needed skin exam yesterday. When I got the exam notification, I submitted a compliant thru the white house hotline and given a case number and suspense date of September 20th but I do not have faith its going to be corrected. 

I was thinking about requesting a hearing for the supplemental next week if the Whitehouse hotline complaint is not updated but given how long it took for the HLR to amount to nothing I fear maybe someone somewhere will read and correct the issue and the hearing will just delay the issue further.

[pacmanx1]

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

38 CFR § 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not - Code of Federal Regulations (ecfr.io)

 

[broncovet]

It would take a full review of your file to know if there were CUE error(s).  

Generally, CUE is for Veterans who "did not" appeal within the required 1 year appeal period.  It sounds like you did appeal, and your claim has been "continiously prosecuted".  That is, your appeal is pending, but Im not so sure about that, again, as I have not reviewed your file.  

I dont recommend people "make" the "standard of review" more onerous, that is, file Cue if you are within the appeal period and can generally file an appeal.  The standard of review "is much higher" for you to meet with CUE, than with a "regular" appeal.  That is, it makes it more difficult for yourself.  

My recommendation is you appeal the denial of your HLR to the BVA.  

Yes, I know.  No one wants to go to the BVA as it takes several years.  I dont like it either.  Not going to the BVA, reminds me of a story, years ago.  

I was working for a company which sold janitorial supplies to companies, when a customer called in asking to speak for his representative.  It just so happened the company rep who makes the wax we sell was there to help train me.  

So, when the cutomer called about the wax problem, we were sent together.  

The customer immeditately attacked us, saying the wax was "no good" and he demanded action.  

The rep quietly asked, "How did you apply the wax?  Did you read the directions?"

"Oh heck no..I dont have time for that.  I just poured it on with a mop, and THIS (pointing to a rather ugly floor) is what happened!!!

I understand.  The directions point out you must remove all the old wax, and grease, before applying new wax.  Did you do that?  

"Who has time for that?" WAS THE RESPONSE.  

Then he said something I wont soon forget

Quote

If you dont have time to do it right the first time, when will you have time to do it over?

I dont care what brand of wax, or paint, if you put it over old, greasy walls or floors, without paint or wax prep, you are not gonna get a good result.  

The customer "did the job over", right that time, by first carefully stripping off the old wax and grease, then applying the wax, buffing, more wax, buff again, to get a great looking floor.  

Short cutting the BVA rarely works well.  If you dig deeply in the BVA chairmans report, you will see that about 80 percent of Veterans claims which reach the BVA, are either awarded or remanded.  (Depending on the representative, a statistic, I dont think VA keeps anymore).  https://www.bva.va.gov/Chairman_Annual_Rpts.asp

Yes, some people get benefits with a HLR, but most of us eventually get benefits awarded at the BVA level.  I did with mine..all of them.  Some people who just waxed their floors 2 months ago, get away without stripping them down also, but grungy dirty, with old wax have to be stripped first.  

My advice is to appeal to the BVA, if you are in the appeal period.  

Now, on to CUE question.  

Mostly, a C and P exam you disagree with. is not CUE.  The only real way to refute a bad exam is with another exam by a competent examiner.  Neither your opinion, nor my opinion, nor the opinion of Joe Biden "trumps" that of a medical examiner.  YOu have to have MEDICAL evidence to win claims.  And neither your opinion, nor my opinion is medical evidence, that is, unless you are a competent qualified medical professional.  (aka doctor)..  

Of course, I am sure you are not pleased to hear this.  But, until you get competent medical evidence, probably before the BVA, you are unlikely to win your claim.  Medical evidence wins claims, while most other stuff rarely does.  

[spazbototto]

I appreciate the responses. I will wait the current claim out until a decision is made, follow-up with my compliant and request a updated c-file. From there I will appeal to the BVA. 

[broncovet]

Ok.  The sooner you appeal, the sooner it likely will come back.  It often takes months and months to get a copy of your cfile, so the sooner you ask for that, too, the better.  

"If" you have a VSO (with VBMS access) or attorney, you can ask them, they may be willing to give you a cd rom of your cfile.  check to see if you have all Caluza elements, you will need to get those, too.  

This sometimes requires buddy letters, and/or an independent medical opinion.  

[Rattler]

I would ask for an in-person hearing at the RO. There is plenty of BVA cases out there that state the RO has to give you a hearing if you request it. I would point out via the record you have the error. I would also file a BVA appeal before your one-year time limit runs out.