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      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. 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FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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Cue Or Not To Cue

46 posts in this topic

Posted

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.

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Posted

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.

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Posted

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.

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Posted

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

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Posted

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.

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Posted

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:

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Posted

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:

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Posted

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.

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Posted

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.

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Posted

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.

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Posted

Here is the VAWAtchdog link to fiduciary proposals:

http://www.vawatchdogtoday.org/Fiduciary_Appointments.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.

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Posted

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.

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Posted

"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.

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Posted

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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 ?

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Posted

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 ?

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Posted

Mic,

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

No I don't think so. It's funny that now when I read that old award letter and how they referred to my claim for my back and neck when I was medically boarded from active duty for my lower back and foot from my accident. Then turned around, corrected themselves and gave it to me. That's why you shouldn't give up. Sometimes it's how we initially present it. I guess....

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Posted

I need some advice/direction. I am 50% connected and one of the reasons is because of my back (they only rated my back 10%). Blew it out and had to have surgery for L5,S1 hurniated disc that causes pain down my left leg. OK, Last August I re-injured it.....went to the VA and after MRI surgeon said i rehurniated the disc and needed another surgery. I said ok, because i was in unbelievable pain. After I woke up, the doctor said i didnt have a hurniated disc but i did have a ton of scar tissue that he removed. Now my calf does not work....its dead...doc says he dont know why and that he didnt do anything to affect my calf!. Also the pain has returned with a vengence....Went for 6 week follow up and doc says post MRI shows guess what?? A hurniated disc at L5.S1!!!! I asked him, wasnt that the disc he was SUPPOSE TO TAKE CARE OF IN SURGERY...he shrugged his shoulders and said i dont know....then asked if i wanted another surgery!!!! I said no. Went to patient advocate and they said if i wanted another surgery (which i will have to have due to this pain that morphine wont touch) that I would have to go to Houston for a second opinion and then go back to Houston for the surgery at the VA there.

My question is what do I do? What should I file for? increase in disability? new disability because of dead calf muscle? CUE? I have no clue. Thanks

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Posted

I respnded to your question as posted in our FTCA forum here.

Th is not a CUE issue.

CUE claims are explained in our CUE forum.

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Posted

carterr,

You should repost this as a new topic in the corresponding forum.

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Posted

Just an update on my incompetency issue. It was all resolved in my favor and I was deemed competent. I submitted progress notes from MH provider and proof of accounts that I handled solely as well as a hand written letter from my spouse with a little background on how we handle our finances. I did not discuss any mental health issues. I did send in copy of couple of credit card accounts and my Roth savings account. Meanwhile awaiting the decision I took the advice of Berta and Jim Strickland. Thanks for all the encouragement and support Carlie and Berta. God bless you.

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Posted

GOOD FOR YOU!!!!!!!!!!!!!!!!!!!!!!!!

I am so happy to see that this was resolved properly for you Michelle!!!!

This is as much a victory as the award was in my opinion and I am proud of the way you fought back on this!!!!

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