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Cue Or Not To Cue


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#1 Michellee

 
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Posted 23 March 2011 - 09:20 PM

If anyone see's Berta please send her my way. I know she will direct me in the right direction. Well here is the deal. I was medically boarded off of active duty for an accident that was well documented actually I was even transfered not quit cleared and sent to the VA for evaluation and treatment. Within my presumptive period after the medical board/disharge I filed numerous claims all at once for numerous symptoms/injuries. Most was given o% or denied and few were given very low percentages like for my foot/hip/uterus/pelvic etc. That was then back in 98. The thing that bothers me to this day is that I think a mistake was really made on the neck and back claim. Today I have pretty good ratings for my lower/back/sciatica etc and was eventually service connected. My neck progressively has gotten worse and worse and still not service connected. The rating the decision they gave me right after the accident for my neck makes no sense. They didn't even do a MRI back then even though I begged. As a result today my MRI's have shown I have spinal cord injury from the cervical area and all sorts of spurs from previous fractures in the neck area. I have stenosis, Ankylosing spondylitis of the cervical spine, myelopathy of the cervical spine, bulging disk etc. So when I filed for neck and back pain I was trying to call their attention to address my injury to my neck and they denied it. Here is what the rating decision in 98 stated for my neck during the presumptive period (after falling in a 15 foot hole which they had the accident report evidence).

The law provides that a person who submits a claim for VA benefits must submit evidence sufficent to justify a belief that the claim is well grounded. A well grounded claim is plausible claim, one which has merit on its own or is capable of substantiation. Such a claim need not be conclusive, but it must be accompanied by evidence which shows that claimed condition exist and is possibly related to service.

Compensation is payable for a disease or injury which causes a disabling physical or mental limitation. The evidence regarding neck and back pains fails to show a disability for which compensation be be established. It is therefore not a well grounded claim which can be resolved. In order to establish a well grounded claim, it is necessary to provide evidence which demonstrates an actually disabling condition. (this is the part that makes me wonder whose records were they looking at) Services records contain no evidence of an injury to the neck or back and no indication of a chronic disease process relative to neck or back. Xrays of the cervical and lumbusacral spine on Va examination were normal.

Now they did not assist me in addressing my symptons. Today they have changed their tune about my back (lower) and of course I lost the initial dates. I just accepted it. Back then I really didn't know much about claims or the Va and would have have believed if they told me the sky was purple. The thing is through out the years since the initial claim I kept complaining and seeking answers about my cervical neck pain and finally about 2006 they started doing MRI's and other tools to look at it. That's when I started pulling my records and finding all the results of the MRI and progression of my back and neck injury. I didnt even think to pull records until another veteran taught me the process. I just didn't know. I always played by the rules and I thought they did. I am still suffering today. I finally after my doctor told me blantantly that this injury to my neck was a direct result of the accident because of how young I am and how the MRI's look. Today I do recieved treatment for my neck but it was never service connected no matter what my doctor told me. I had to make a decision and so not really understanding about CUE's I thought it may be best to just reopen my claim from 1998 for my neck pain (cervical) and file for all the newly diagnose cervical results from my doc and MRI. After reading so much on Hadit and another Vet site I am wondering If I really did the right thing. Did I just let them off the hook. I have read multiple post on this site about what makes a claim, Browskoski test etc., and I am wondering I made the right move. It appears that I didn't I keep asking should I have Cued or Not. They were well aware of my accident during the first claim and had the accident report so it was well grounded. Sure it may not have been conclusive because there was no official diagnoses made but I was seeking medical answers and care based on my symptoms to which I kept being told maybe I pulled a muscle in my neck. They had the after action report from my commander which showed evidence, they had my medical out paperwork where I checked the box for back and neck pain. Sure the pain then wasn't as bad as it is now but it did cause me pain and spasm that I expressed to them in my claim as neck and back pain. I didn't know then how to write it up any different than that and they didnt bother to C & P all they did was an xray which they claim was normal. Funny thing is couple of years later I continue to complain and the next set of xrays shows spurs and other things in the same area. Obviously, the pain that I was feeling then in my neck and back during the presumptive period was the injury that I am still suffering from and proven by recent MRI's today. I would like to hear various takes on this. Cue or not to Cue?

Edited by Michellee, 23 March 2011 - 09:21 PM.


#2 Philip Rogers

 
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Posted 24 March 2011 - 03:54 AM

If they have now SC'd it and rated it I would file a CUE for an EED. In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!

pr

#3 Berta

 
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Posted 24 March 2011 - 06:39 AM

I agree with Philip but would add this to what he stated:

. "In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!"
and documented evidence of the neck injury at a ratable level.

Standing alone, 'neck pain' might not have been specific enough for the VA to consider
"by evidence which shows that claimed condition exist and is possibly related to service."

If this was secondary to the back injury that too had to be spelled out to them.

There is much CUE info here at hadit.

#4 Berta

 
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Posted 24 March 2011 - 06:41 AM

Michellee- can you scan and attach the 1998 decision here ? (cover personal stuff first)

#5 Philip Rogers

 
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Posted 24 March 2011 - 08:16 AM

Michellee - I agree w/Berta. Please post the '98' decision, as it'll give us more info to better direct you. Also, what kinda accident was it?

pr

#6 Michellee

 
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Posted 24 March 2011 - 06:05 PM

Attached File  CCF03242011_00000.jpg   1.78MB   42 downloads, Attached File  CCF03242011_00001.jpg   1.95MB   35 downloads
Thanks guys. Here it is. Phillip my fall was into a 15 ft hole ( that was what I was told and in letter from my commander). Myself and another soldier that I was supervising during the Gulf war we were moving supplies and handling mail. As we were carrying several big boxes there was a hole in the soil that had dirt over it and none of us ever realized it was there. As we walking together with mail bag and boxes as we stepped we just fell through the ground into the hole with the boxes. We were down in the hole for a while with the boxes. It was just so unexpected. The other soldier was unconscious for about 10 min. I'm not sure what I was. Things were hazy after that and lots of confusion. I was told later that some of the boxes had division coins in them. I really don't know why the hole was there or how it got there. Neither did our First Sergeant and Commander. I remember as I was in the hospital the commander stating how pissed off he was at a few people for not checking and ensuring safety. As of the date of my medical board and no one ever took responsibility for it, many claim they had no idea. My commander was the greatest. Older guy from Kansas I will never forget him. He personally, would come up to the hospital. He yelled at doctors when they misdiagnosed me. He brought flowers from the company. He signed my cast. My First Seargeant was very supportive as well and they both wrote persoal letters for me and the other soldier. A lot of my complications didnt show until later or years after the fall. I have multiple injuries left from it and much anxiety with heights, people, sleeping, nightmares of being buried alive, etc. So that's that. Now I am trying to get a more accurate rating for my complications and injuries since I feel I understand the VA much better today to help myself and participate in my medical care. Thanks for all your help. I have trully gotten to where I have from multiple post and guidance from all of you on this site. I wouldn't even be where I am now. My MRI's over the last 4 years have shown much traumatic spinal cord injury, the local VAMC tried to assign me to the local spinal cord clinic and move me from my PCP but I opted to stay. He really works hard to assist me and I have been working with him for a while and is very comfortable with my PCP. Just couldn't entertain the idea of new doc. I have been in wheelchair since 2004 and have moderate foot drop and sciatica to say the few as well as now 1.5 inch shorter lower limb which I didnt have prior to the accident. So I am now playing catch up my neck doesn't turn to the left but maybe 10 degree and to the right 45 degrees. I was diagnose as having myelopathy from the spinal SCI from local VAMC in 2009. I got TDIU in 2008. I just filed a claim for revaluation/reopen of neck claim which I filed as neck pain when it is alot more complicated than that. But that was the only way I knew to readdress and get them to look at what I have been suffering from since 98. I been asking for help for the past 13 years. I didn't know what to claim or knew anything back then nor the correct terminology and was to caught up in trying to manage my health, pain, family. I have had problems with bowel/bladder for years first it started with constant UTI's and now barely have any bladder control left. Wont get into the bowel thing. They use to tell me it was because I had children and caused my bladder weakness. In 2008 I was told it was more than likely from my cord injury. So you see I am swimming backwards. But it is ok. I just want to make sure I get these things accurately rated, evaluated and treated. I am not worried about filing claims as I am TDIU and not under the 20 year rule. Fine with me. I know the risk and not at all worried because I need to make sure these complications from the fall is accurately service connected so if somethings happens to me my spouse and family won't be told well she wasn't service connected for that. I had something to happen once can't remember how it came up at the moment but I did have that thrown in my face by someone is prosthetic when I was going from wheel chair to power chair. So I got to make things right. I have all my MRI's, CT, to back me up now not just an xray. Well I think I need to pull my claim back and file a CUE so tha'ts why I am asking you all for your opinion. Thank you so much Berta.

Edited by Michellee, 24 March 2011 - 06:06 PM.


#7 Michellee

 
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Posted 24 March 2011 - 06:11 PM

I agree with Philip but would add this to what he stated:

. "In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!"
and documented evidence of the neck injury at a ratable level.

Standing alone, 'neck pain' might not have been specific enough for the VA to consider
"by evidence which shows that claimed condition exist and is possibly related to service."

If this was secondary to the back injury that too had to be spelled out to them.

There is much CUE info here at hadit.

Yere I realize that now, sometimes folks are not familiar with the system especially just getting out the service and don't know what to ask the VA to consider outside of stating these are my symptoms, here are my medical records and after action report of the accident. In my case I was a medical transfer to the VA so there was no doubt then about 2 months later I cleared and paper work sign sealed and delivered with medical board blessings. I would like to hold that initial date of when I filed that neck claim but not sure how to do it. I figure it's a CUE but need to do more research on how to go about it. So I am asking alot of questions and reading alot of the CUE info here at hadit. Very informative and that's what pushed me into thinking I may have a chance. Oh I forgot to mention all I have for my back rating today is 20% they wrote it up as Degenerative Disease Lumbar Spine and traumatic athritis, as well as sciatica for each lower limb and 10 % for left hip strain. (whatever that is). I have a total of 80% with these and few other items. I have constant chest pain and irregular heart beats and pain on side of my chest as well. Denied rating in the past and test have shown normal cardiac is what they tell me. My right wrist is 0 % and I can't grasp with my right hand. Hurts real bad to open my right hand completely. My powerchair is left handed structered. It's ok I am ambidextrous. Left arm very heavy and pain shooting constantly, I live on morphine and nerve block shots. I am only 42 years old btw wearing diapers all day long and life changed forever. Still glad to be present it just has not been easy and been a long road to just managing. I hope you get it. If you don't its ok too. Take care. Thx again

Edited by Michellee, 24 March 2011 - 06:29 PM.


#8 Berta

 
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Posted 25 March 2011 - 06:17 AM

Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?
Such as the medical board findings?

#9 Michellee

 
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Posted 25 March 2011 - 11:24 AM

Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?
Such as the medical board findings?


No evidence list provided. What I scanned is all they ever gave me. I thought then that I had no chance in appealing that no meant no. I didnt no how it all worked and I just sucked it up and kept trying to recieve medical care for it. Later down the line a PCP questioned me of why I was not service connected for any of my back issues then and I tried to explained I had filed and got denied. He encouraged me to refile. So I did. Then I got the rating a few years later for the lumber but didn't ask for the neck. I didn't know your neck could be secondary to you back? hmmmmm. I am on so much medicine I really think it gets the best of me. I just reopened claim in Jan 2011 for my neck and I filed some other new claims with that for my IBS and migraines as secondary. The migraines are listed as secondary to my cervical stenosis, and the IBS secondary to meds I take for my back and neck and host of other things. I am still trying to get them to address my foot drop. I included a request for increase for my LIS Franc Injured left foot which is slightly twisted and dropped which I only got rated at 30% with no special K for the foot drop. Thats not right either. They need to rate me according to the foot drop. I can't walk on that foot at all. It drags. From alot of the CUE information on site that I have been reading made me question how I am going about this neck claim since 1998 and I really believe some things are not being rated correctly or either I am not presenting it correctly. Either way I am trying to straighten it out. No it doesn't seem that they even looked at the accident report at all but then they mention the fall when they were rating other items like my wrist etc on the same sheet. So I was really confused by that. How could I fall 15 foot and you not even consider my neck and back but you consider that record to rate my wrist and my foot. However, later they did come back and rate my Lumbar and give me the DDD and MRI's today show spurs and bulging disk through out from the S1- S4. Then they turned around do EMGs and give me sciatica as well for both legs and remember all this was after they denied me since 98. They made it right with that part but not the neck. I am having a hard time correcting and connecting that part. Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?

Edited by Michellee, 25 March 2011 - 11:35 AM.


#10 Michellee

 
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Posted 25 March 2011 - 11:40 AM

BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. :ohmy: I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.

#11 carlie

 
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Posted 25 March 2011 - 11:59 AM

She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too.


Michellee,

Secondary conditions need to be correlated to something that is ALREADY SC'd.
Aren't some of these medications RX'd for your ALREADY SC'd back injury ?
If yes, then I would submit something in writing to clarify this ASAP !

JMHO

#12 Philip Rogers

 
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Posted 25 March 2011 - 11:59 AM

Michellee - I can 99.9999999999999% guarantee she only heard that "your IBS is secondary to the meds you take for your neck" and, as such, will deny the IBS and, probably, the migraines. I hope I'm wrong, but I think it's highly unlikely. As for your CUE, I think you have a potential CUE. You need a copy of the accident/after action/incident report and all the medical records, from the accident. Hopefully there's something in there about your neck. There's no doubt a fall like that could cause a neck injury but the problem is/will be convincing the VA.

pr



BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. :ohmy: I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.



#13 Berta

 
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Posted 25 March 2011 - 01:57 PM

Is it possible they considered the neck injury in this decision:

"later they did come back and rate my Lumbar and give me the DDD and MRI's today" etc.

or part of this:
"cervical stenosis"

"Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?"

If they made a legal error in that decision by failing to rate the neck disability,or code it properly and the proper rating would have been service connectable at least at 10%,based on the evidence they had at that time-then there is potential CUE.

Does your C file reveal any blue rating sheet at all?

If we saw the actual older decision we could help more but there is plenty of CUE info here.

The denied CUEs that linked here in the CUE forum are as helpful as the awarded ones.

#14 Berta

 
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Posted 25 March 2011 - 03:17 PM

These CUES might help you determine if you should file CUE and they are good references as to how to word CUE claims;

Carlie found this beauty:

http://www4.va.gov/v...es1/1004548.txt


Wings found this one:

http://www.hadit.com...e-awarded-1990/

Here are more from Carlie:
http://www.hadit.com...d-for-research/

#15 Michellee

 
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Posted 25 March 2011 - 04:51 PM

Michellee,

Secondary conditions need to be correlated to something that is ALREADY SC'd.
Aren't some of these medications RX'd for your ALREADY SC'd back injury ?
If yes, then I would submit something in writing to clarify this ASAP !

JMHO



Calie that is correct I am on 8 different pills every 8 hours. Absolutely and most of them are for my spasm, Lumbar back (SC'd) , Gabapentin for (sciatica SC'd ), depression/anxiety (SC'd 2 different type meds), siezure med (non sc'd), Not to forget the pain meds (Morphine every 8), also get the nerve block shots now once a month for neck.

#16 Michellee

 
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Posted 25 March 2011 - 05:02 PM

Michellee - I can 99.9999999999999% guarantee she only heard that "your IBS is secondary to the meds you take for your neck" and, as such, will deny the IBS and, probably, the migraines. I hope I'm wrong, but I think it's highly unlikely. As for your CUE, I think you have a potential CUE. You need a copy of the accident/after action/incident report and all the medical records, from the accident. Hopefully there's something in there about your neck. There's no doubt a fall like that could cause a neck injury but the problem is/will be convincing the VA.

pr






Philip
I think your right. I did not sleep well and I was awaken by the call and my 19 year old daughter handed me the phone as she was walking out the door for univerisity class and I asked who it was and she said she didn't know it was an unknown caller by the time I got on the phone the lady asked me to verify my active duty dates, and how much my compensation was etc. Meanwhile the room was tilting sideways and I just laid there with the phone in my ear trying to make sense of the conversation. So after the fact I realize I didn't clarify correctly and possible screwed myself. I need not to talk on the phone. I do better if I write cause I got a more time to think as I go. I did resend a copy of the accident report with my reopen formal claim request and there wasn't much done to my neck after the accident except they did put a colar on me for a few days and then said on the next recheck that my neck looked fine and everything checked out that they believed I just pulled a muscle. The recheck was not even at the hospital they sent me back to the TMC for that. No one ever suggested doing an MRI. I did get an xray straight out of the emergency room which aparently they claimed it checked out fine. So that is why the VA eventually there was no record of any trauma to my neck. However it kept hurting like hell. I kept having spasm and all sorts of other problems, then started the migraines, occasional pain mid back and in my shoulder. Even my side of my face(just the left). I was so busy trying to find a cure or a diagnoses because they kept playing me like it was all in my head. It just got progressively worse and I kept going to VAMC about it and tried to get medical care for the complications and I did. I had to fight for even a heating pad for my neck and a cervical pillow told I wasn't SC for the neck. So its been a long and hard road. But I am getting there, things got alot better when I got the PCP I have now and the Pysch Doc ( who specialized in pain) they both pretty much are life savers and very helpful. Things are always clear to me initially, but I do get it after a while. Don't get me wrong I am no idiot. I just need a little longer to process than I did before. I can even do my taxes. It just takes me about 2 weeks and I have check, recheck, and do that several times. So you know what I mean. Well Phillip I think I screwed myself. I am going to call or send and IRIS and try to straighten it out. It will get worked out Gods will.

Edited by Michellee, 25 March 2011 - 05:33 PM.


#17 Michellee

 
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Posted 25 March 2011 - 05:16 PM

Is it possible they considered the neck injury in this decision:

"later they did come back and rate my Lumbar and give me the DDD and MRI's today" etc.

or part of this:
"cervical stenosis"

"Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?"

If they made a legal error in that decision by failing to rate the neck disability,or code it properly and the proper rating would have been service connectable at least at 10%,based on the evidence they had at that time-then there is potential CUE.

Does your C file reveal any blue rating sheet at all?

If we saw the actual older decision we could help more but there is plenty of CUE info here.

The denied CUEs that linked here in the CUE forum are as helpful as the awarded ones.


Well I feel the fail to assist me or that part of my claim and I dont have a copy of my C file I just keep copies of everything I send them and what the send me. Like I said the only thing I have about the that particular decision is the blue sheet I scanned on here from 98. (Those were the older decision that I scanned). I just reopened in Ja 2011. So thats all I ever requested on my neck since then. The VAMC diagnosed me about 4 years ago with Cervical stenosis after several C-Spines and CT's, and MRIs, I had 2 MRI's again last year six months apart for neuro to evaluate as a preop and I did refuse surgical intervention (12 years late) and I do have Chord injury. A lot of scar tissue in there (spurs) are impinging on nerve roots as well. This is what I was told and I have limitation of head turning as a result and much more. So they did not consider my neck for rating purposes because I never refiled until now. Then I wondered If I did wrong and should have CUE'd. They did rerate my back because I refiled for that. I hope I am explaining this clearly. Well thanks so much for your help it has really set me on a better direction and made me revaluate how I am presenting this. Thank you Berta. I have ready so many times your post about your cases and your hubby and always found it to be very inspiring. Thanks for sharing as well.

Edited by Michellee, 25 March 2011 - 05:19 PM.


#18 john999

 
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Posted 25 March 2011 - 05:41 PM

Remember that failure to assist can't be a CUE. In my case the VA never even gave me appeal rights and they admit it. No CUE on that score. How do you get due process when you are a 21 year old vet who is not even given appeal rights?

#19 rakkwarrior

 
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Posted 25 March 2011 - 06:12 PM

There is such a thing as a VCAA Notice Error, however, the Supreme Court held in Sanders v. Shinseki (2010), that the error must be prejudicial and in sum a "harmful" error where but for the error the outcome would be manifestly different...the burden of proof being upon the veteran to show how the Notice error was harmful.

Relevant to the aforementioned, the Supreme Court held, "A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VA failed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decide what “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) has the “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain just who, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” of harming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19Vet. App. 103, 121 (2005)."

The Court further held, "To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238 , n. 4 (2002) (Souter, J., dissenting)."

Finally, the Court, "recognize[d] that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (Souter, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985)."

In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C.
§5103A.

Edited by rakkwarrior, 25 March 2011 - 06:48 PM.


#20 carlie

 
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Posted 25 March 2011 - 07:12 PM

Then I wondered If I did wrong and should have CUE'd.


Michellee,
Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.
The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.

#21 Berta

 
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Posted 26 March 2011 - 06:50 AM

I could write book on the VCAA.We were all given enhanced DTA regs in 2000 (the VCAA) and then VA manipulated in some cases-what we got.In 2009 I even asked Congressman Filner to support an amendment I wrote to the VCAA. (I told him by phone the VA had turned this DTA reg into a Scam.The Annual Chairman of the BVA's reports revealed exactly what I meant.)But my idea for amendment didn't get anywhere. :wacko: Things have changed anyhow regarding the VCAA.

The VCAA started out as a positive step but allowed the VA in turn to set up countless time consuming remands over VCAA errors and this is what I believe was the fundamental cause of the backlog.Almost every BVA decision shows the BVA looked over the VCAA letter carefully to see if anything possibly prejudicial had occurred within it.It so,the claim ad to be remanded back to the RO AOJ.

Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

This bears repeating and thanks for stating this:


“In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.

The very first statement of argument in my I-9 regarding my past AO claim was that the VA had violated the VCAA to my detriment and I stated how and enclosed copy of the VCAA letter I had received. (it was so bad I a angry as I type this and it supports my mantra that many raters cannot read. These VCAA letters have to be carefully read over by the veteran (or widow) and their POA .Most are now and the remands due to VCAA violations at the BVA has sure calmed down.

I asked the BVA for immediate remand due to this VCAA violation causing deficiencies in the SOC,and SSOC I received.The BVA agreed:
.”The Board notes that the claimant has not waived
consideration by the agency of original jurisdiction, and has
in fact stated that, in light of the failure to consider all
the evidence of record, a remand would be required. The
Board agrees. A remand is required to ensure that this
evidence has been fully and fairly considered at the RO
level.”
The VCAA was still violated again by the RO in my case on remand and the deficiencies now involved the AMC and another RO's SOC but when it returned to the BVA, my probative evidence had mitigated the damages and BVA awarded anyhow.

During this period my vet rep, and his boss, and then even the director of my state POA told me I was wrong on the VCAA violation. I filed complaint with the General Counsel against them and am satisfied with the results that had.

As Rakk said here:
“in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A. “

You are 1,000% CORRECT here of course and I am glad the VCAA is in this topic because ,if errors are made in the VCAA letter to the vet's detriment, they can certainly cause a denial that might not be warranted.The appellant has the burden to show the error was harmful.Unless the BVA picks up the error.

The only evidence I needed for that was to send the BVA the VCAA letter I got It was disgraceful.My Soc and SSOC revealed it's prejudicial damage.

In my BVA award it states:

The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§
3.102, 3.156(a), 3.159, 3.326(a) (2008).

The VCAA is not applicable where further assistance would not
aid the appellant in substantiating her claim. Wensch v.
Principi, 15 Vet App 362 (2001); see
38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide
assistance "if no reasonable possibility exists that such
assistance would aid in substantiating the claim"). In view
of the Board's favorable decision in this appeal, further
assistance is unnecessary to aid the appellant in
substantiating her claim.”

You bet it was -I wrote my own little VCAA letter to myself and complied with it. I knew what evidence they needed to award the claim , what the award should be and what the EED was.It took 7 years due to this VCAA violation that caused deficiencies in the SOC, SSOC which my VARO refused to correct and which my POA refused to acknowledge.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.

I am glad the topic of VCAA came up here as we haven't discussed the VCAA in a long time.

While most VCAA letters today are proper and compliant with the VCAA regs, any detrimental error in the VCAA letter could potentially cause a denial and yet a reasonable possibility could exist that such
assistance would aid in substantiating the claim.(but for the prejudicial error)

I asked NVLSP lawyer if the VCAA could be waived for the new AO claims that are obvious awards -ie: the vet was incountry and the vet had documented diagnosis of one o the new AO presumptives but he said VA could never waive the VCAA.

I dont know about anyone else here but I never received VCAA letter on my new IHD claim and they said they have enough to decide it within 30 days depending on a response I have to send in by next week.

I think VA is waiving the VCAA in some new AO claims.

Edited by Berta, 26 March 2011 - 07:00 AM.


#22 Berta

 
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Posted 26 March 2011 - 07:24 AM

NVLSP has this undated statement under the VCAA at their web site:

"The VCAA also gives individuals two years from November 9, 2000, to request that VA readjudicate claims denied as not well grounded which became final between July 14, 1999 and November 9, 2000. These claimants are advised to immediately contact their representative (usually a service officer). Requests for readjudication should promptly be filed with the local VA regional office. "

http://www.nvlsp.org...-CLAIMSHELP.htm

Unfortunately I guess the VCAA tactic will not work in Michellees case here.

The actual rating sheet (the one they used to send to NSOs and reps -which the veteran didnt get in those days (1998))
in your c file -might reveal a potential legal error as basis for CUE.

#23 carlie

 
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Posted 26 March 2011 - 10:02 AM

Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.



Berta,
That's the way I'm understanding the denial also - from the get-go her cervical (neck) was denied as NWG.

I too sure wish you had submitted a Waiver Of Regional Office Consideration, (most of the veterans/claimants community
may not have even been very aware of the Waiver at that time) but you continued to have faith in them.
Most of us know, that many of them are still learning how to read and properly apply the evidence : - )

#24 Michellee

 
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Posted 26 March 2011 - 05:14 PM

Michellee,
Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.
The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.



Thank you so much Carlie for your help. Clarification is that I just sent the claim in Jan 2011 to reopen by writing a formal letter and stating such. I believe now what I should have done was file a CUE instead. Hope that's clear. Like I said before they already called me the other day or yesterday whenever I mention it. I was surprise and thankful that they were looking at so quickly. But its not over so I will be using this format. Thx.

Remember either way I need to get it service connected for sure and the fact that "I filed for this a few months after my medical board" it was claimed during the presumptive period. I found this and found this case very interesting and similar.

check this out. http://www.va.gov/ve...es3/0515336.txt

the question in my mind has been do I CUE or simple reopen and lose the original dates. :wacko:

I found these quotes interesting in that case that spelled out to me that I had an inkling of a chance to reopen. Still don't believe they bothered to look at the accident report/evidence. Then years later they did for my lower back my mistake was I didn't reopen for the neck.:mellow:

"I. Pertinent laws and regulations.

To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service. See 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease
is first diagnosed after service, service connection may
nevertheless be established by evidence demonstrating that
the disease was in fact incurred during the veteran's
service, or by evidence that a presumption period applied.
See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).

"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
See Pond v. West, 12 Vet. App. 341, 346 (1999); see also
Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively,
under 38 C.F.R. § 3.303(b), service connection may be awarded
for a "chronic" condition when: (1) a chronic disease
manifests itself and is identified as such in service (or
within the presumption period under 38 C.F.R. § 3.307) and
the veteran presently has the same condition; or (2) a
disease manifests itself during service (or during the
presumptive period), but is not identified until later, and
there is a showing of continuity of related symptomatology
after discharge, and medical evidence relates that
symptomatology to the veteran's present condition. Savage v.
Gober, 10 Vet. App. 488, 495-98 (1997).

In the case of a disease only, service connection also may be
established under section 3.303(b) by evidence of (1) the
existence of a chronic disease in service or of a disease,
eligible for presumptive service connection pursuant to
statute or regulation, during the applicable presumption
period; and (2) present disability from it. Savage, 10 Vet.
App. at 495. Either evidence contemporaneous with service or
the presumption period or evidence that is post service or
post presumption period may suffice. Id.

By a decision in January 1997, the Board denied the veteran's
claim of entitlement to service connection for low and mid-
back conditions. When the Board or the RO has disallowed a
claim, it may not thereafter be reopened unless new and
material evidence is submitted. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (2004).

New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2004);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

There was a significant change in the law during the pendency
of this appeal. On November 9, 2000, the President signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law
redefined the obligations of VA with respect to the duty to
assist, and imposed on VA certain notification requirements.
The final regulations implementing the VCAA were published on
August 29, 2001, and they apply to most claims for benefits
received by VA on or after November 9, 2000, as well as any
claim not decided as of that date, such as the one in the
present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a). "

This case was won by the veteran in the end. Also I plan to request a nexus letter from my PCP on my upcoming appt next week and fax it in as evidence as well. So we will see how this plays out I will keep you all posted.

Edited by Michellee, 26 March 2011 - 05:56 PM.


#25 rakkwarrior

 
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Posted 26 March 2011 - 06:04 PM

Request they review you records from service and the complaints and findings of your condition within the presumptive period in accordance with 38 C.F.R. 3.156(c )(4), in the event they did not have the records at the time of the prior decision, additionally request them to consider the application of 3.303(d); 3.307(b); and 3.309(a) as it pertains to your condition.

This should ensure they look at these regulations in context with your condition, which was noted in service and if documented within the first year, should have became compensable to a degree of ten percent or more within a year of leaving service. If this is not definitively shown by the evidence of record there is no CUE, but a medical opinion from your orthopedist (after a review of all relevant records from service, and current clinical findings) regarding your C-spine injury and later degenerative changes stemming from the in-service injury should serve to have the case reopened and unless clearly rebuttable, should end in a grant for the issue as sought.

This advice if reviewed carefully should comport with the Board's reasoning and the legal standard for a grant of benefits.


#26 carlie

 
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Posted 26 March 2011 - 06:09 PM

Also I plan to request a nexus letter from my PCP on my upcoming appt next week and fax it in as evidence as well.


Michellee,
The nexus letter (above) could be used for a re-open but not useful for a CUE claim.
CUE's can only consider the evidence of record at the time the prior decision was made.

#27 Michellee

 
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Posted 26 March 2011 - 06:12 PM

NVLSP has this undated statement under the VCAA at their web site:

"The VCAA also gives individuals two years from November 9, 2000, to request that VA readjudicate claims denied as not well grounded which became final between July 14, 1999 and November 9, 2000. These claimants are advised to immediately contact their representative (usually a service officer). Requests for readjudication should promptly be filed with the local VA regional office. "

http://www.nvlsp.org...-CLAIMSHELP.htm

Unfortunately I guess the VCAA tactic will not work in Michellees case here.

The actual rating sheet (the one they used to send to NSOs and reps -which the veteran didnt get in those days (1998))
in your c file -might reveal a potential legal error as basis for CUE.


Well maybe not but the fact was no VCAA notice was provided to assist me and because of that I feel that they harmed the outcome of my case. If they had let me know I had options back then I may have appealed but I really didn't know I could and then over time I was to busy trying to heal and getting a grip with my health changes and life. That is to bad they only went back to 1999. :huh: Your right getting my C file may hold more answers. I am going to request asap.

#28 Michellee

 
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Posted 26 March 2011 - 06:14 PM

Thanks Rak. I am learning alot here. Obviously, I have my work cut out for me with this particular claim. I am going for it.

#29 Philip Rogers

 
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Posted 26 March 2011 - 06:31 PM

Michellee - I'd still go the CUE route! Why give up the original claim date. You can always reopen, at any time. Check your c-file - ya never know what secrets it holds. jmo

pr

#30 carlie

 
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Posted 27 March 2011 - 11:11 AM

check this out. http://www.va.gov/ve...es3/0515336.txt

"I. Pertinent laws and regulations.

To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service. See 38 U.S.C.A. 1110,
1131 (West 2002); 38 C.F.R. 3.303 (2004). When a disease
is first diagnosed after service, service connection may
nevertheless be established by evidence demonstrating that
the disease was in fact incurred during the veteran's
service, or by evidence that a presumption period applied.
See 38 C.F.R. 3.303, 3.307, 3.309 (2004).

"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
See Pond v. West, 12 Vet. App. 341, 346 (1999); see also
Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively,
under 38 C.F.R. 3.303(b), service connection may be awarded
for a "chronic" condition when: (1) a chronic disease
manifests itself and is identified as such in service (or
within the presumption period under 38 C.F.R. 3.307) and
the veteran presently has the same condition; or (2) a
disease manifests itself during service (or during the
presumptive period), but is not identified until later, and
there is a showing of continuity of related symptomatology
after discharge, and medical evidence relates that
symptomatology to the veteran's present condition. Savage v.
Gober, 10 Vet. App. 488, 495-98 (1997).

In the case of a disease only, service connection also may be
established under section 3.303(b) by evidence of (1) the
existence of a chronic disease in service or of a disease,
eligible for presumptive service connection pursuant to
statute or regulation, during the applicable presumption
period; and (2) present disability from it. Savage, 10 Vet.
App. at 495. Either evidence contemporaneous with service or
the presumption period or evidence that is post service or
post presumption period may suffice. Id.

By a decision in January 1997, the Board denied the veteran's
claim of entitlement to service connection for low and mid-
back conditions. When the Board or the RO has disallowed a
claim, it may not thereafter be reopened unless new and
material evidence is submitted. 38 U.S.C.A. 5108 (West
2002); 38 C.F.R. 3.156 (2004).

New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. 3.156(a) (2004);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

There was a significant change in the law during the pendency
of this appeal. On November 9, 2000, the President signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
38 U.S.C.A. 5102, 5103, 5103A, 5107 (West 2002). This law
redefined the obligations of VA with respect to the duty to
assist, and imposed on VA certain notification requirements.
The final regulations implementing the VCAA were published on
August 29, 2001, and they apply to most claims for benefits
received by VA on or after November 9, 2000, as well as any
claim not decided as of that date, such as the one in the
present case. 38 C.F.R. 3.102, 3.156(a), 3.159 and
3.326(a). "

This case was won by the veteran in the end. Also I plan to request a nexus letter from my PCP on my upcoming appt next week and fax it in as evidence as well. So we will see how this plays out I will keep you all posted.


Michellee,
I found the meat of this claim at the BVA to be:

1) BVA acknowledged the fact that medical evidence had been submitted, which they judged to be N&M,
thus allowing the issue/s to be re-opened.

2) This medical evidence, when considered along with the medical evidence of record, was judged to place
the totality of medical evidence into relative equipoise. Since this had been met, the BVA was able to apply
the BOD and grant the issue/s.

#31 Michellee

 
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Posted 01 April 2011 - 05:24 PM

Appears that the VA is moving on my claim pretty quick. I was contacted by QTC of some evaluations for everything I put in for in reference to my increases. The only concern I had was why no eval was ordered for my neck when I called the 1 800 # they said that the VA doesn't always have to evaluate via a outside medical opinion if they feel they already have enough on record. So I hope that was the rater's thinking as I was told. I don't think I will get to keep the original dates though. They told me that it was already decided at that time and that I did not appeal so it closed out. So there is no hope for a cue, I guess. They just did not have enough evidence that a problem existed at that time and I didn't push the issue. So anyone reading this learn from my mistake. I should have been more persistant about my neck injury and followed up. Just because I didn't understand the process is not thier CUE. So I am going to have to live with reopening it from here with the new evidence, nexus, and treatment records. I can still show them I have been suffering since that date from that injury as just evidence of progression to reopen. Thanks for everyone's help. :cool:



#32 Philip Rogers

 
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Posted 02 April 2011 - 03:30 AM

Michellee - Guess the VA wins and you lose!!! It's okay to give up . . . I understand. You do realize that nothing a VA employee tells you needs to be the truth. They cannot be held libel and so they "lie." Anyway, good luck! To others who may be reading this, don't, ever, ever, give up cuz when you do they win by default.

pr



Appears that the VA is moving on my claim pretty quick. I was contacted by QTC of some evaluations for everything I put in for in reference to my increases. The only concern I had was why no eval was ordered for my neck when I called the 1 800 # they said that the VA doesn't always have to evaluate via a outside medical opinion if they feel they already have enough on record. So I hope that was the rater's thinking as I was told. I don't think I will get to keep the original dates though. They told me that it was already decided at that time and that I did not appeal so it closed out. So there is no hope for a cue, I guess. They just did not have enough evidence that a problem existed at that time and I didn't push the issue. So anyone reading this learn from my mistake. I should have been more persistant about my neck injury and followed up. Just because I didn't understand the process is not thier CUE. So I am going to have to live with reopening it from here with the new evidence, nexus, and treatment records. I can still show them I have been suffering since that date from that injury as just evidence of progression to reopen. Thanks for everyone's help. :cool:



#33 john999

 
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Posted 02 April 2011 - 12:45 PM

BVA declared to me that in no way can a problem with VCAA or duty to assist can be a CUE. If I suspected I had a CUE I would file for it and then if I lost I would go see if I could find a lawyer to take it. If you have doubts file the claim.

#34 Michellee

 
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Posted 04 December 2011 - 04:16 PM

THIS IS AN UPDATE RECEIVED CLAIM BACK SATURDAY IN MAIL. Dear Carlie, Phillip Rogers, Berta, John and others whose input has really helped me along the way with this. I want to thank all of you for your help. Also I am somewhat in shock as to some of the results of my claim.

I did not cue. I filed for increase on my S/C MDD, PTSD, I filed for increase on my S/C foot drop, I filed for increase on S/C hip which resulted in shorten leg from bone infection in hip., I filed a new claim on my cervical neck and all the diagnoses from VAMC docs/MRI which the neck was ongoing since presumptive period after medical discharge.

Keep in mind I am already 80% TDIU. Results from claim is Foot drop went from 20% to 30%. Hip remained at 10%, Neck (Cervical) is deferred. (Not sure why). MDD/PTSD went from 30% to 100% and now they want to propose INCOMPENTECY. They also added a SMC S for housebound. I did not get an SMC for the foot.

I AM IN SHOCK. NOT SURE WHY AND I AM NOT INCOMPETENT IN ANY FORM OR FASHION. NOT SURE WHAT HAPPEN WITH THAT.

So I will request a hearing and mail it out tomorrow and send in a rebuttal. My husband and I are good stewards of our financial affairs. We have no lates with our bills. We don't gamble. We have two children under 13. Our kids are taken care of. We own our home and have no lates on our mortgage. I vaguely remember the C&P doc asking who handles the bills and I thought she was asking as in do I have a good support system and I may expressed that my husband does the bills does the majority of the bills. That is by choice not based on any incompentence. I was running a fever that day and found out later on that day. I was sick I was taking an over the counter med for UTI which I get alot. Month later the infection spread to my bladder and I was almost admitted to the VAMC. I refused my PCP was not happy with me. So there was alot medically going on and I can't recall what all was said or done. I know I was very lethargic during the appt cause I was sick as a dog. I agree I do have some issues and its a daily struggle for me but I am not incompetent and I order my meds online and I pay my bills online and some are automatic monthly. I do this so I rarely have to leave the house. I have alot of anxiety and things happen. So why the proposal, not sure. I will attempt to straighten it out though.

Well this isn't doing my anxiety and depression a bit of good and I am happy about some of the results but that part just soured it. If you know what I mean.

#35 Berta

 
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Posted 05 December 2011 - 08:38 AM

This is a great decision Michellee

except for the incompetency part.

By all means fight this and ask for a hearing.

Meantime fortunately you do have a husband who could be your payee.

I hate it when the VA does this crap.

They will hinge on whether or not the veteran is the household bill payer and use that against the veteran.

You gave here some very good reasons why they are wrong.

Do you have a family lawyer?

If so I wonder if they would be willing, with the fact you pay your bills on time etc, to make a statement to the VA for you as to your competency.

Or do you have proof of any credit or bill payments solely in your name you can prove you yourself paid?

Maybe it is best to go to the new VA Watchdog Today site where Jim Strickland has some excellent advice on these incompetency proposals.

DO you get SSDI? If so does that check come directly to you in your name?

Would your VA MH provider be willing to state you are competent?

In most cases(but not all) in my opinion this stuff is VA BS- plain and simple- just so that they can hold onto the retro longer.

"I pay my bills online and some are automatic monthly."

I do that too and my email addy is solely mine -if your email addy that they used to set you up for direct auto payment is yours and not shared much with other family users then I would use that too as evidence.

You sound like a stay at home mom as well as being disabled.That is a lot to deal with.

But how can someone raise young kids if they are incompetent?

Ridiculous.

Hopefully others will chime in here but keep in mind you have had a Victory with your claim.

(Another reason they cant say you are incompetent) and do what you can to appeal this proposal but bear in mind that this has nothing to do with you as a person, it has to do with the arbitrary VA system -always looking for ways to withhold money.

#36 Berta

 
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Posted 05 December 2011 - 09:50 AM

Here is the VAWAtchdog link to fiduciary proposals:

http://www.vawatchdo...pointments.html

About 2 years ago there was quite a hoopla over fiduciaries when it was discovered that some VA fiduciaries had stolen comp from veterans.

One fiduciary -appointed by the VA as there was no family member to appoint- was found to be a convicted felon!

The VA was picking fiduciaries without even doing a background check on them.

As a VA claimant myself for much of the past 17 years, I feel the VA itself is incompetent when they cannot even read evidence correctly.

I had to NOD my last award letter because the VA employee who prepared it made up a regulation that doesn't even exist.

And I sure proved the incompetency of multiple VA doctors when they caused my husband's death.

This stuff really ticks me off.

In most American households, as Jim says in his articles at the link, one spouse always handles the bills.

If that spouse is not the veteran, the VA uses that to propose incompetency and it is absolutely ridiculous, especially when we all, as claimants, deal with so many claims errors on VA's part.

I think they only do this when the retro is over 20,000.

I guess if the retro is only 19,000 or less, they feel that vet is competent enough to handle that.
It makes no sense at all.

Edited by Berta, 05 December 2011 - 09:53 AM.


#37 Michellee

 
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Posted 05 December 2011 - 10:39 AM

This is a great decision Michellee
Thanks, its just hard to feel good about this victory in all. Some things good, and this is very bad
except for the incompetency part.

By all means fight this and ask for a hearing.

Meantime fortunately you do have a husband who could be your payee.
Yes, I will prepare just in case and open separate accounts and move my VA compensation to a personal account.
I hate it when the VA does this crap.
Me too.
They will hinge on whether or not the veteran is the household bill payer and use that against the veteran.
I read Mr. Stricklands site about this and learned alot.
You gave here some very good reasons why they are wrong.

Do you have a family lawyer?
No, should I get one for the hearing. I didn't think the a lawyer could really speak on my half to the VA as well as my husband and I could. The only thing I have to say to them (VARO) is that I can pay bills and show them the proof.
If so I wonder if they would be willing, with the fact you pay your bills on time etc, to make a statement to the VA for you as to your competency.

Or do you have proof of any credit or bill payments solely in your name you can prove you yourself paid?
Yes, I have two credit cards in my name only that I solely pay for.
Maybe it is best to go to the new VA Watchdog Today site where Jim Strickland has some excellent advice on these incompetency proposals.
Okay, will do.
DO you get SSDI? If so does that check come directly to you in your name?

Yes, But they are direct deposits to our joint family checking account.

Would your VA MH provider be willing to state you are competent?

No, I asked My current MH at the VAMC and she told me they dont allow them to write letters. She said she would put it in her progress notes and that I can pull a copy of that and submit it. So I guess it's the same. She did say she felt I was competent.

In most cases(but not all) in my opinion this stuff is VA BS- plain and simple- just so that they can hold onto the retro longer.
Yep, although mine was less than 5000
"I pay my bills online and some are automatic monthly."

I do that too and my email addy is solely mine -if your email addy that they used to set you up for direct auto payment is yours and not shared much with other family users then I would use that too as evidence.

Great idea, will add to evidence list.
You sound like a stay at home mom as well as being disabled.That is a lot to deal with.

Yep, I have two older children that assist one is 25, and other 21. So we manage.
But how can someone raise young kids if they are incompetent?

Well I hope I win because I wonder if that could prompt them to come after our children with social service.
Ridiculous.
Yes, it is they are great kids well rounded and have karate, in evening that my daughter takes them too and doing well in school. Boy scouts members. So they are well taken care of.
Hopefully others will chime in here but keep in mind you have had a Victory with your claim.

Yes, and I want to feel the victory its just hard too at the moment with this pending action of my head. It just real bothers me and scares the crap out of me. My anxiety is high. I started cutting again. Woke up in bloody sheets with a 1/2 gash on side of my stomach. I have got to hold it together. I had stopped cutting a year ago after I was put on an additional meds and it was working great

(Another reason they cant say you are incompetent) and do what you can to appeal this proposal but bear in mind that this has nothing to do with you as a person, it has to do with the arbitrary VA system -always looking for ways to withhold money.
I know I shouldn't take this personal but it feels like it. Just the label has such negative connotations when you think of someone that is incompetent. Then how the world views you and how your rights are stripped. It affects your ability to bear arms, own property, and who knows what other legal aspect. What about creating a will, what about saving for my kids college. Thanks again. Anyway, I am grateful and thankful that Va worked my claim so quickly they did do a good job on processing time I thought. I filed this in Jan 2011. C&P in Apr. Decision now. I did go forward and not backward. So it is a win. I really need my neck to be service connected although they have always treated it. My lumbar is SC and my sciatica bilateral. I give up on the foot drop that I have as bad as it may be. I have no K, and it's okay. I did get an increase from 20% to 30%. So they do acknowledge it has gotten worse and have foot drop. Now the PTSD, what happen to the MDD, I never knew the VA to change the complete MH rating from one to another. I thought they would just give me an increase to 50%. I am not complaining I just always heard that they don't rate more than one MH condition. So I was suprised to see that the award letter stated PTSD rather than MDD as it always did in the past.



#38 Berta

 
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Posted 05 December 2011 - 01:33 PM

"Well I hope I win because I wonder if that could prompt them to come after our children with social service."

No , I dont think you should ever worry about that at all.And you have some great evidence to get this proposed issue overturned.

VA Incompetency is solely a VA issue about compensation.

Real incompetency has to be declared by a court of law and with A LOT of evidence.

#39 carlie

 
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Posted 10 December 2011 - 05:36 PM

Attached File  CCF03242011_00000.jpg   1.78MB   42 downloads, Attached File  CCF03242011_00001.jpg   1.95MB   35 downloads


But it is ok. I just want to make sure I get these things accurately rated, evaluated and treated.
I am not worried about filing claims as I am TDIU and not under the 20 year rule.


Mic,
Is your current rating already covered by the 20 year protection rule ?

#40 carlie

 
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Posted 10 December 2011 - 06:01 PM


I vaguely remember the C&P doc asking who handles the bills and I thought she was asking as in do I have a good support system and
I may expressed that my husband does the bills does the majority of the bills.


Mic,
I'll bet that the underlined above is why they have proposed incompetency.
If the MH C&P was done at your VAMC - get a copy of it and look it over real good.
See if the MH C&P examiner stated competent or incompetent to handle VA funds.
Ask for the hearing.
BTW - did this new rating decision state P&T OR No Future Exams OR Chapter35 benefits ?