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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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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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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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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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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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