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How My Cue Succeeded
Posted 26 January 2012 - 09:44 AM
If the VA had enough documented and established medical evidence to warrant SMC consideration ( to include a prior established 100% SC award) and then an additional and separate SC disability of at least 60% was established ,but VA failed to infer and consider SMC, that means the VA committed a clear and unmistakable error.
Special Monthly Compensation is established by a statute and as a benefit it is mandated to be inferred and decided on whenever the established medical evidence warrants it to be. 38 USC 1114.
I filed CUE on a final 1998 VA decision in 2004. The awarded it this past week.
It never went to the BVA and the VA managed to convolute the very simply issues I raised at the regional level for many years. It was set for BVA transfer in August 2010 but my AO IHD claim referenced it and they decided it in Philadelhia with my IHD claim.
My CUE claim also stated they violated the Rating Schedule in 38 USC on my husband's CVA ratings and also the decision lacked any rating or diagnostic code whatsoever for my husband's fatal ischemic heart disease.3 CUEs in one.
I sought proper SMC consideration as well as a properly rating on both disabilites, to include a proper diagnostic code for the IHD.
As Evidence I used my husband 100% P &T SC for PTSD award letter with an EED that predated the cued decision so this was well established medical evidence.
I used copy of M21-1MR Part VI, March 25,2003 Change 102, Erratum under 3.09 ISSUE and 3.10” Inferred issues and Ancillary benefits” to support the SMC mandate in 38 USC 1114.
I also knew that the established evidence had to be in VA's possession for purposes of CUE and I thought that would be the problematic part of my CUE.
Although the 1998 decision listed as Evidence ,a VA Central Office report,I didnt know if the Buffalo VARO had the entire medical evidence from that report so I sent it all them ,stating that all the medical evidence at time of the alleged CUE ,whether at VA Central or Bffalo VARO, was in fact “in VA's possession” at time of the alleged CUE.
I reminded VA that along the veteran's 100% PTSD award , I explained why the veteran had 2 separate SSA awards and the initial award was solely for the CVA , and the next award solely for PTSD was due to a reconsideration by SSA.
The IHD was a part of the 1998 decision (an award under 1151 for VA causing the veteran's death due to CVA and IHD)
Even though this was an award, it also was a 'denial' of SMC consideration.They didnt even mention SMC at all in that award so I felt it was a denial of SMC.
I also sent a limited amount of established med recs regarding my husband's fatal IHD which the VACO reports covered well.
This was a CUE issue under Section 1151 disabilities in 2004 but I tried to keep the 1151 factors out of this post as I dont think they would apply to anyone here. The regs are the same for 1151 and SC in this SMC respect.
If anyone needs, I will gladly state the legal evidence I used for the 1151 aspect -as I believe that evidence would apply to anyone's claim for CUE under SMC regarding 1151 disabilities.
Basically the CUE was simple, lack of SMC consideration that was legally warranted by the established medical evidence, and CUEs made on the CVA ratings and lack of diagnostic code and rating for the IHD.
In addition to the 1151 factor, this was also a widow's claim based on a claim that my husband had pending at his death under 1151 but I left out that part here because that situation doesn't crop up much at all. I found only 4 similar cases of SMC accrued at the BVA filed by widow claimants and none were CUE claims.
My original CUE claims (2) were incorporated into one by VA covering the 3 separate issues I cued.
The original CUEs were short and to the point legally ,all stated on one page ,with the enclosures I mentioned.
Since 2004 I could hardly believe some of the crap the VA sent me over the years in order to keep denying these CUE claims.
They even stated that the veteran had never asked for SMC consideration himself as one reason for denial.
I asked them in turn for a copy of the specific regulation that would require the veteran to do that, for proper SMC consideration.Of course there is no regulation.
I rebutted every denial and kept sending them my legal evidence (which never appeared on any evidence list they sent and was completely ignored by the RO).I should have waived further RO consideration but I believed someone at Buffalo would at some point, read the evidence and I was wrong.
At this time I also was dealing with my AO DMII claim and I was iving with an illusion with that one too.
Only the BVA read my evidence for that claim. The RO ignored it all there too.For 7 years.
My long point here is that CUEs can succeed.
The medical evidence MUST be established and in VA's possession.
While sending med recs can help address and define the CUE issue , the main issue is solely the legal evidence that shows VA broke their own regs and M21-1MR regarding that established medical evidence.
A CUE can be made, as in my case, by failing to apply a regulation properly and also by taking pen in and to put the wrong rating and/or diagnostic code on the rating sheet.Or worse yet- to even fail to rate and give a DC too a well established disability under SC or Section 1151 NSC.
The Philly VARO under Nehmer resolved the IHD CUE issue. They then awarded the CVA rating under Section 1151.
I feel that rating is still wrong and will appeal it. But I need a break from it all first!!!!!! I am hiding the decision for a few days or weeks to clear my mind.
CUE claims should be fairly simple to prepare and simple for VA to decide.
Of course one must read over lots of CUE info etc to make sure they have a potential CUE before they even start.
But again I remind that the VA might well try to confuse and confound you enough that you give up on the CUE in frustration.
Rebutt everything they say that is incorrect as to VA case law, make them cough up the proof of any fictitious 'regs' they appear make up, and fight them until you WIN!!!!!!!!!
It kind of pisses me off to realise how much time fed emloyees at VA took to creatively deny the CUE issue since 2004 with bogus crap
never once considering my legal evidence,when the VA had to pay me the money anyhow and it was in my bank the same day I got the award letter this week.
Time that could have been better spent properly adjudicating another widows or veterans claims instead!
Posted 26 January 2012 - 10:47 AM
I'm sure your detailed info will be helpful to others.
Posted 26 January 2012 - 12:36 PM
I think you should stay with us, always and forever. Your experience in these matters is unparalled. Disabled veterans need clear, sober minded, thoughful, intelligent advocates. You are an excellent warrior. ~Wings
Edited by Wings, 26 January 2012 - 12:38 PM.
Posted 26 January 2012 - 01:05 PM
It really is a shame that you had to kick the mule over this, nothing-less ...your foot is fine and the mule will recover.
I am so glad to see that the personal Va nightmare is over.......CONGRADULATION!
Posted 25 July 2012 - 10:33 AM
Question 1: what will be awarded to hubby if 1151 claim succeeds? I am unclear specifically on what retroactive benefits he will get.
Question2: we also have A &A claim pending. So with all 3 claims pending...a &a, 1151, and IU, will they each get their just reward If they succeed? OR... If u get one award, you canot get the other? I am unsure. Any insight you can share will be greatly appreciated. God bless you Berta. You are truly an inspiration to those of us in need of positive postings. You make our say a little it brighter. Thank you.
Posted 25 July 2012 - 12:23 PM
And I hope your husband has help from a vet rep who understands this type of claim.
I need to suggest something I never did myself regarding my 1151 claims- that your husband should obtain an IMO regarding specifically the negligence or malpractice.
I believe (and will check) that there is a template for 1151 IMOs (Independent Medical Opinions) in our IMO forum.
These claims need medical evidence of a disability (or death) that resulted directly from VA's 'omission of acts' and/or other medical errors, involving care that is not appropriate or up to the standards of the normal medical community.
“Question 1: what will be awarded to hubby if 1151 claim succeeds? I am unclear specifically on what retroactive benefits he will get.”
If they award the claim they will use the date of filing the 1151 claim for the retro EED. It is difficult to know what rating they will give.
In my case, they awarded DIC under 1151 many years ago and much changed since then (it is now directly due to service connected death- far better than 1151 DIC) It was for malpracticed heart disease and stroke and medication errors.
In January 2012 they awarded 1151 retro at 100% for the stroke that I proved VA healthcare caused my husband to have-for a 6 month period as per the Schedule of Ratings for stroke (CVA) and then awarded a rating and retro for his residuals which they granted as retro SMC in addition to the 100% award.
“Question2: we also have A &A claim pending. So with all 3 claims pending...a &a, 1151, and IU, will they each get their just reward If they succeed? OR... If u get one award, you canot get the other? I am unsure. Any insight you can share will be greatly appreciated. God bless you Berta. You are truly an inspiration to those of us in need of positive postings. You make our say a little it brighter. Thank you.”
That is hard for me to determine with this information.
One thing is for sure-the VA cannot subtract or offset a 1151 award from any SC award.
I posted those regs in the FTCA/1151 forum.
What I mean is, in January 2012 VA SCed under Nehmer my husband's fatal heart disease which was still unrated since his death (17 years) ,trumping my initial FTCA/1151 award.
Then when I saw the amount that included his CVA nder 1151 award I thought at first they paid me too much but I found the regulation they used, ...they still considered the Stroke under 1151, so that meant they could not offset his stroke retro from the SC IHD retro.
It can get confusing and I suggest getting an IMO to assess if
in your case ,VA ,did malpractice to the point of not properly treating your husband cardiac condition that could have caused the stroke and then supporting the proper rating for the stroke, as well as the extent and proper rating of any residuals from it if they award 100% for the initial post stroke period.
Or the IMO doctor might find another cause for the Stroke, due to some other type of medical error.I assume a MRI was done and there is a full MRI narration in his VA med recs.
A stroke can occur for many reasons.An embolic or ischemic stroke can occur due to cardio problems that possibly were not treated in time. Also hyerlipedimia, and other cholestrol problems can significantly factorinto the potential origin of a stroke. However there are other types of strokes which might not stem directly from heart disease. This is something an IMO doctor could clarify and also could assess if anything else went wrong with your husband's VA health care, that also could have caused or contributed to the stroke.
The TDIU factor here -if they award the 6 months at 100% under 1151, they could in fact consider his residuals after the 6 months period, as also warranting continued 100% comp or TDIU.
It is difficult to know as the 1151 claim will control those additional claims for A & A and TDIU.
I did all of the medical research myself for my original 1151 claim and my FTCA claim. I studied neurology and cardiology for the entire 3 years those claims took and was fully able to opine on and discuss with VA Central Strategic health team on the medical established facts of the case in the lingo and rationale that the established facts of the case required.
But that was an exhausting period of my life and I don't recommend doing it that way. Particulary since you are a caretaker for your husband now.
Years later I had an additional 1151 issue and obtained 3 IMOs for that. The IMO doctor assessed a brief email from me, called me and said if I sent to him what I mentioned along with his fee, he could fully support my claim. That claim succeeded in 2009.
IMOs are costly but unless you have a strong layperson's medical background, the VA will fight the 1151 issue,in most cases, VERY aggressively in most cases. A vet I helped under 1151 months after I filed my claim, succeeded in his 100% P & T SMC under 1151 award in mere months after sending in the claim.
I wrote the claim for him in minutes.I was very familiar with his medical situation but something had happened at a second VAMC he had just been discharged from and I knew right away that his medical records would reveal obvious malpractice and VA concurred very swiftly without an IMO from him.
But these are isolated situations. 1151 claims these days almost always need an IMO. We have a vet here at hadit who I do not believe will need one for his 1151 claim but in what you have posted here- I am very very sure that your husband will need one for the 1151 claim.
Sometimes what appears as negligence, isn't negligence at all.
It takes a full reading and often Many re-readings of med recs, blood chem reports, medication info, treatment records, and knowing what the numerous abbreviations and medical acronyms mean in the med recs.
Also , in your case, as in mine, I had to study how to read MRIs as well as EKGs to build my case and to understand the type of stroke my husband had and why he had it.I also learned from his med recs he had multiple prior mini strokes before the major CVA and was given a med for no medical cause that also lent to the cause of his stroke and VA concurred.
1151 malpractice can have a domino affect and a good IMO doctor can either support the 1151 claim or give you peace of mind,if it appears that VA did nothing wrong regarding your husband's care.
. “ I have it in writing from copied med records from the va heart dr.,....the plan of care was to follow hubby with cardiologist...cardiologist wrote this to primary care doctor In his own notes to him. “
That is very concerning and that statement could help develop a 1151 claim.
Still I hope your husband can get a good vet rep and consider an IMO
because VA stated basically the same thing on an ER certificate in my husband's lifetime
( ROCAD,and WU CAD) but never followed up a thing they wrote on it and never said a word to me or to him as to further cardiac testing which never occurred,then
discharged him with a diagnosed problem he didn't even have, and for 6 years medicated him for this 'phantom' problem, and that same ER certificate was my first piece of evidence of prime facie VA malpractice for the wrongful death award.
The medication was found to have been completely inappropriate and one of multiple medical errors that contributed to his stroke and to his death.
VA saves lives every single day. But negligent care does occur ,whether in VA's or private hospitals ,and it can become so serious that it causes death.
Edited by Berta, 25 July 2012 - 12:32 PM.
Posted 26 July 2012 - 07:00 AM
Posted 26 July 2012 - 07:40 AM
Every accredited Service Org, such as AL, DAV, VFW, PVA, VVA, etc have reps who have been trained in preparing 1151 claims.
An IMO doctor will also be able to see if the VA at some point actually covered up additional malpractice.
I think that was the worse discovery I had made.Evidence of a medical cover up.
A VA cardiologist , treating my husband due to a transfer from the local VAMC to another VAMC, made an odd reply to me when I had questioned something he had said.
What bothered me was how he paused before he replied. About 4 years later I discovered exactly why he paused.It is odd how a wife can remember everything the doctors say and how they say it when it comes to their spouses care.
I even took notes.
It was the beginning of a cover up this VA cardio doc was part of ,to make sure no one knew how bad the other VA had malpracticed.
One of the Neuros however had a single notation in the med recs that became the basis for my DMII claim resolved in 2009. He had done the entire MRI narrative but I recalled -also about -9 years later - what he had told my husband that day. after he did an odd 'test' which I now know what it was for.
I had the basis for an additional 1151 disability which was also a SC disability.I immediately filed another claim.
Dr. Craig C Bash (we have done radio shows with him in the SVR forum archives here available via PC with a media player)
did 2 IMOs for me and I managed to find as well, after many many months, the same neuro, who had left VA for private practice and I emailed him.
He remembered my husband and after seeing some med recs to include his notation (part had been scratched out on the recs but I could read it, he replied via email and his 2 sentence email statement was given as much weight by the BVA as my 2 IMOs as it helped prove my DMII claim.
These are things that take considerable time and concentration and a good basic medical knowledge that also takes so much time to develop -so nothing is better then having an IMO that conforms to the IMO format here at hadit .
Also I never raised the DMII issue for my FTCA and original 1151 claim. It took me 9 years and y daghter's insistence to file the DMII claim.
Maybe if I had gotten an IMO in 1995 , that would have revealed the untreated DMII. But maybe not. It was quite well hidden in the medical records.
Posted 26 September 2012 - 08:09 AM
Try to write the CUE basis in one paragraph.
Refer to and enclose copy of the past denied decision you are filing the claim on.Include the rating sheet.
Send it to the RO who made the CUE. Get a roof of mailing.
Enclose the rating sheet from the decision because It contains the ratings for the established medical evidence.
Clearly define the regulations they broke and refer to the decisionas to how the misapplied them or ignored them. Copy those regs from 38 CFR or Use and/or M21-1MR and paste it with a hyperlink into the CUE claim.
Or refer to the regs and attach them.
Tell them why the error cost you money.(how it "manifestedly altered the outcome” of that specific claim.
No superficial rhetoric.... this should only take one page or maybe one additional page , including a list of your enclosures.
If my new claim is denied, which I dont expect, I will then file a CUE on a past decision regarding the same issue.
NVLSP agreed with me as to that scenario a few months ago but I want to try a different approach first as 1151 claims have no time limit restrictions.
The potential CUE will be simple:
This is m first draft:
This is a claim of CUE under auspices of 38 USC ,5107.
My husband's HBP was given a NSC rating in a 1998 decision I received.(as enclosed)
The medical evidence VA said they had from VA Central for the 1998 1151 award letter reveals the extensive malpractice of my husband's HBP and an 'as likely or not "statement from a head VA Central cardio doc.That evidence is enclosed.
The award failed to properly rate and consider the 1151 factor regarding the 1998 award.
I cite and also enclose copy of M21-1 Part IV ,March 19,2004, Change 113, under 3.09 ISSUE, as highlighted for your consideration.
Please prepare and award the proper retro payment as an accrued benefit to me ,under this clear and unmistakable error in the enclosed decision.
(I sure might throw in more legal beagle stuff as to the legal error but basically that is all there is to a CUE claim.)
I could actually use the CUE award I got in January as evidence too.
However, the BVA has denied or dismissed many CUE claims because the claimant did not clear define the regulations or statute that the VA broke.
Those claims are usually dismissed by the BVA without prejudice, meaning if you word the claim a little differently and identify the exact regs they broke, it can be filed again as a new CUE claim.
Edited by Berta, 26 September 2012 - 08:16 AM.
Posted 26 September 2012 - 11:07 AM
I know my DH has at least one CUE claim he could file against his 1985 original decision & rating. Found his original 4138 claim and the VA called his 3rd degree burns 2nd degree, and skipped half of them completely. They contradict themselves with his increase a last year by rating him with 3rd degree burn scars and this time they included most of them. Plus, they ignored the medical records when skipping scars.
Now it looks like he might have a second CUE because in his award letter for PTSD, they give him 100% for PTSD alone, in addition to his existing 80%. But there's not a word about SMC.
But I gotta say, the whole thing makes my head spin. He talks about filing CUE etc. claims, but he is not at all capable of doing any of the paperwork dealing with the VA. He freezes up and won't talk to me. And for me to do it.. I'm not much better off. My head starts swimming and I feel nauseous... and that's just for his stuff. Thinking about dealing with mine makes a panic attack come on.
I had tried a while ago to get a lawyer to help me with getting SSD (SSI?) and they expected me to get all the paperwork squared away for them to review. If I could manage that, I wouldn't need help.
I know that as the veteran, you have to be your own warrior, but what happens when your disability is the very thing that stops you from standing up for yourself?
Oh, and our OPH representative was very skittish when we mentioned CUE to her. She clearly felt out of her depth and simply said "Those are almost impossible to win...."
Posted 26 September 2012 - 01:43 PM
Posted 27 September 2012 - 07:59 AM
“A Veteran in receipt of IU benefits may be entitled to special monthly compensation (SMC) at the Housebound rate under 38 U.S.C. 1114(s) if the evidence shows that
the unemployability is the result of one SC disability, and
the Veteran has
additional SC disability(ies) independently rated at least 60 percent disabling, or
been determined to be permanently Housebound as a result of the SC disability that rendered the Veteran unemployable. “
Source: M21-1MR Part IV ,Subpart ii, Chapter 2, Section F
Also part of my CUE (a 3 part argument) was that VA had defied the legal fact that SMC, is mandated by Statute (I sent them the Statute and I might have posted it at hadit too or maybe I sent them an excerpt from the VBM that explained it)
... if the evidence warrants consideration of SMC, and VA fails to consider SMC , they have committed a CUE.
"I know that as the veteran, you have to be your own warrior, but what happens when your disability is the very thing that stops you from standing up for yourself?"
That is the heartbreaking part of the claims process.
And the failure of many our vet reps with an enhanced duty to help disabled veterans by virtue of their disabled condition..Disabled vets justify their salaries.
Thanks for the compliment but I sure think my 5 years in a war school helped me a lot with my VA battles.
It's all a paper tactical war game.
Posted 31 October 2012 - 06:19 AM
Thank you Berta. You posts are always so helpful, loaded with so much insight. :)
Posted 31 October 2012 - 10:17 AM
Hi again Berta, I'm sure this is someplace on the site but I can't find it...a "fact sheet" of all the issues I have to prove for hubby's 1151 claim to be approved. Seems I found a guide, outline someplace on here before? Excellent site so full of info..I get lost at time! :)
Thank you Berta. You posts are always so helpful, loaded with so much insight. :)
It's probably in the 1151 forum.