Is this a CUE??

[2NDMARDIVDOC]

Hello and thank you. Back in 2001 when I discharged I filed for several conditions and was awarded many of the ones I claimed. One I was turned down for was my overactive bladder which was diagnosed in the service and I was treated with medication. If I remember correctly the reason it was denied is because the VA said no evidence existed regarding that condition. I didn't contest it back then because of all the other stuff that did get granted. Long story short, I located a copy of my discharge physical on ebenefits and behold right there on the front page it said I had overactive bladder. I know the VA had that exam because they used it to grant the other conditions. So the question is, can I file 15 years later for a CUE since they had the evidence and didn't apply it? By the way, I still carry that diagnosis and still take medication provided by the VA so all records are current. 

[2NDMARDIVDOC]

49 minutes ago, Berta said:

I assume you did not re apply since, for this condition.

If not, I suggest that you file for the condition,to obtain a SC rating and then refer to and enclose a CUE claim on the past denial...if, in fact, the symptoms and treatment , as within these following cases, did raise to a ratable level when you were denied.

“In this case, the Veteran contends that a disability rating in excess of 60 percent is warranted for his overactive bladder, which is rated by analogy under Diagnostic Code 7512.  38 C.F.R. § 4.115b.”

 

The BVA did not give him a higher rating, but the case shows how they rate this condition and the Diagnostic codes they use:

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files2/1113212.txt

In this case, also awarded, the veteran did not characterize the condition properly but the BVA fixed that and he also succeeded.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files6/1546461.txt

You will need new and material evidence when you request the VA to re open this claim.

If you still have the denial ( hope so) or you might find it if you have an ebenefits account...???not sure

and if this is the reason they denied:

"If I remember correctly the reason it was denied is because the VA said no evidence existed regarding that condition. ", they obviously had your SMRs for the SC conditions, yet overlooked the critical evidence in them for the bladder condition.

Copies from your SMRs highlighted to show inservice treatment, as well as a copy of your discharge certificate is enough new and material evidence to re-open the claim and tell them your medical records will reveal this condition is still current  and is still being treated by the VA.

If they award the current condition, then you will need a copy of the past denial and if the condition was at a ratable level when you were discharged I will write a CUE claim for you and post it here.

 "So the question is, can I file 15 years later for a CUE since they had the evidence and didn't apply it? By the way, I still carry that diagnosis and still take medication provided by the VA so all records are current. "

You bet. I found 4 CUEs in my 1998 DIC award letter...all awarded. The most recent CUE was awarded last year.

 

 

 

 

Berta, if you don't mind could you also peek at the other post I submitted last night? I'd appreciate your thoughts on that as well. Thanks. 

[Berta]

What forum is it in?

The decision would be in your C file....I think the vet orgs destroy stuff after 7 years but maybe not.

It is worth a try to contact the DAV.

C files copies are taking many many months  to arrive when vets request them.

You might have faster luck by just writing to your VARO for that single decision.Give them the date as an estimate and tell them it was an award letter and the only one (I assume) in your  file,if the DAV does not have it.

I might have email addys  for your RO. Which one is it? 

[paulcolrain]

""I didn't think any evidence existed since the VA said they couldn't find any. I made the mistake of taking them at their word. It wasn't until I registered for ebenefits that I was able to see some of my past records including the discharge physical. As I mentioned, the D.C. Physical clearly states in my problem list that I suffer from overactive bladder and was on medication. The VA had that document st the time of my rating but I believe they overlooked it. """

just to add some thoughts on this...

get the exact wording and facts of the denial for this condition. if it states that they couldnt find any evidence WITHIN your service treatment records .. than they are saying that what ever they read then this is a very hard cue claim if you didnt appeal. if the wording states. couldnt FIND A RECORD or SOME RECORDS NOT AVAILABLE... THAN YES A GREAT CLAIM FOR CUE...

THE other point id like to warn you on is the ,, SUBJECTIVE or OBJECTIVE evidence..

in other words... if your record you found states THE VETERANS COMPLAINTS OF LIST THAN THIS IS SUBJECTIVE... if your record states that THEY ARE DIAGNOSING YOU WITH .. THAN THATS OBJECTIVE... 

just remember that CUE CLAIMS WIN ONLY WHEN IT WOULD TURN IF ON ITS FACE AN ERROR OCCURRED. 

[2NDMARDIVDOC]

2 hours ago, paulcolrain said:

""I didn't think any evidence existed since the VA said they couldn't find any. I made the mistake of taking them at their word. It wasn't until I registered for ebenefits that I was able to see some of my past records including the discharge physical. As I mentioned, the D.C. Physical clearly states in my problem list that I suffer from overactive bladder and was on medication. The VA had that document st the time of my rating but I believe they overlooked it. """

just to add some thoughts on this...

get the exact wording and facts of the denial for this condition. if it states that they couldnt find any evidence WITHIN your service treatment records .. than they are saying that what ever they read then this is a very hard cue claim if you didnt appeal. if the wording states. couldnt FIND A RECORD or SOME RECORDS NOT AVAILABLE... THAN YES A GREAT CLAIM FOR CUE...

THE other point id like to warn you on is the ,, SUBJECTIVE or OBJECTIVE evidence..

in other words... if your record you found states THE VETERANS COMPLAINTS OF LIST THAN THIS IS SUBJECTIVE... if your record states that THEY ARE DIAGNOSING YOU WITH .. THAN THATS OBJECTIVE... 

just remember that CUE CLAIMS WIN ONLY WHEN IT WOULD TURN IF ON ITS FACE AN ERROR OCCURRED. 

Thank you. My denial states the the "perpounersnce of evidence" was not in my favor. They say that because doctors were not able to render a dx of a primary cause for the overactive bladder. I feel that the bladder condition is a condition of and in itself. Overactive bladder is a medically recognized condition even when it is of unknown ediology. My service records confirm I was dx'd with it and required medication. I still suffer with it and continue medication. Just because doctors couldn't find a cause doesn't mean it doesn't exist. That's how I feel anyway. I don't see how that's different from anyone who's SC for migraines. Migraines are dx'd purely on subjective data and they are service connectable. So how's my bladder condition any different? 

Edited December 18, 2016 by 2NDMARDIVDOC

[Gastone]

You need to concern yourself with the entire "Preponderance of Evidence" problem, a CUE Claim after this length of time, might be a stretch. You need to get the Medical Evidence supporting your DX to a minimum of "Equipoise," then you should get the "Vet Benefit of Doubt" Jump Ball Award.

More experienced Hadit members may have a different view, I think wringing your hands over a  wishful CUE should be secondary to getting an FDC for your Condition Filed immediately. File the FDC Electronically on your e-Ben account. Attach all your old & NEW & Material Medical Evidence as Pdfs to the FDC.

FDC's are taking 4 to 6 mos to get a Decision. If all your Supporting Medical Evidence gets you over the hump for the "Preponderance of Medical Evidence," supporting your condition as an SC issue, you'll get the Award. With the Award in hand, then you can request a possible EED due to "Missed Evidence of Record."

Get a copy of your original C & P DBQ from your VMC Medical Records and post a redacted copy so we can get a grip on your situation. A redacted copy of your Denial would also help.

Semper Fi

[paulcolrain]

Quote

 I think wringing your hands over a  wishful CUE should be secondary to getting an FDC for your Condition

i agree totally. file the FDC then work backwards for EED BY USING CUE THOUGHTS.