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Cue Or Not To Cue

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Michellee

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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
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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/vetapp10/files1/1004548.txt

Wings found this one:

Here are more from Carlie:

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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.

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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
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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
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  • HadIt.com Elder

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?

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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
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