Cue Advice

[shotkawla]

When I filed for VA disability 8/1996 I was only rated for one condition, pulmonary vascular disease with a 60% rating. Fast forwarding 2011 – I submitted a claim and was granted 40% bilateral disability for VA code 7121. Here’s my question: Why wouldn’t VA rate me back in 1996 for VA code 7121 when it was in the clearly stated in my PEB decision from the navy. However, they rated me for it in 2011. I think the VA failed to properly adjudicate my disability back given the medical documents and PEB decision. Does this falls in the line of a CUE? Below is a synopsis of the Navy’s and VA’s decision.

NAVY

Category I: All Unfitting Conditions:

Diagnosis and ICD9 Date VA Code/Percent

Chronic Recurrent Pulmonary Embolization, 4151 05/28/1996 7199-6603 10%

Chronic Recurrent Deep Venous Thrombosis, 4538 05/28/1996 7121 30%

Category II: Those conditions that are contributing to the unfitting condition (s):

• Hypercoagulable state, not further defined because of the patient being on anticoagulant, 2898
• Tricuspid Regurgitation, 3970
• Mild Chronic Leg Edema, 7823
• S/P Pulmonary Thrombectomy, 74749
• S/P Greenfield filter placement into the inferior vena cava, 433

VA DISABILITY AWARD

DATE FILED DATE AWARDED VA CODE PERCENT

8/1996 11/27/1996 6817 60%

8/2011 04/18/2013 7121 40% Bilateral legs

[carlie]

When I filed for VA disability 8/1996 I was only rated for one condition, pulmonary vascular disease with a 60% rating. Fast forwarding 2011 – I submitted a claim and was granted 40% bilateral disability for VA code 7121. Here’s my question: Why wouldn’t VA rate me back in 1996 for VA code 7121 when it was in the clearly stated in my PEB decision from the navy. However, they rated me for it in 2011. I think the VA failed to properly adjudicate my disability back given the medical documents and PEB decision. Does this falls in the line of a CUE? Below is a synopsis of the Navy’s and VA’s decision.

NAVY

Category I: All Unfitting Conditions:

Diagnosis and ICD9 Date VA Code/Percent

Chronic Recurrent Pulmonary Embolization, 4151 05/28/1996 7199-6603 10%

Chronic Recurrent Deep Venous Thrombosis, 4538 05/28/1996 7121 30%

Category II: Those conditions that are contributing to the unfitting condition (s):

• Hypercoagulable state, not further defined because of the patient being on anticoagulant, 2898
• Tricuspid Regurgitation, 3970
• Mild Chronic Leg Edema, 7823
• S/P Pulmonary Thrombectomy, 74749
• S/P Greenfield filter placement into the inferior vena cava, 433

VA DISABILITY AWARD

DATE FILED DATE AWARDED VA CODE PERCENT

8/1996 11/27/1996 6817 60%

8/2011 04/18/2013 7121 40% Bilateral legs

This is not a CUE.

[Philip Rogers]

I would still pursue it. I'd write that they made a grave error, possibly a CUE and then explain why. I feel you should have appealed their original decision, then. jmo

pr

[Berta]

"When I filed for VA disability 8/1996 I was only rated for one condition,"

Did you formally claim the DC 7121 bilateral leg condition in 1996?

Do you still have that older decision and if so, can you scan and attach it here? (Cover the personal stuff...name,address, C file number)

[broncovet]

If the VA failed to adjuticate your claim for DC 7121 in 1996, then it is highly likely your preferred remedy is not to file a CUE, but to look into 38 CFR 3.156 instead to earn an Earlier effective date.

Since your decision is within a year, you can appeal the effective date, with an "ordinary" NOD, and you need not make the bar higher to jump over by unnecessarily asking for a CUE.

You see, to win a CUE, it must be "undebateable", while you can be granted benefits with a NOD if you can meet the "doctrine of equipose" standard, asking for the benefit of the doubt. Benefit of the doubt goes out the window with CUE, and is replaced by "undebateable". Dont raise the standard of review for yourself unnecessarily so.

There is also the "pending claim doctrine", where you can allege the VA did not adjuticate your 7121 claim in 1996, but instead waited until 2013. While the VA can "deemed deny" your claim, newer case law says that you have to be reasonably expected to know your 7121 claim was denied. You likely should consider a lawyer to see if he sees an eed for your claim.

[shotkawla]

I was able to find my copy of the Veteran's application for compensation or pension (21-526) that I filed when I got out of the navy and in block 17 here's what is listed:

17. Nature of sickness, disease or injuries for which this claim is made and date each began

USN TDRL 40% Pulmonary embolization; deep venous thrombosis w/ permanent requirement for -- coumadin -- tricuspid reguguritation, -- mild leg edema --- S/P pulmonary

thrombectomy---S/P greenfield filter placement into the inferior vena cava.

Now, since it was listed and VA failed to rate or provide a C&P exam for leg edema, is this grounds for a CUE?

[63SIERRA]

Seems like the va duty to assist, would come into play, they had to see that there was an additional claim here. As already stated, u might want to run it by a attorney, and see what they advise.