CUE for Peripheral Neuropathy

[JustGettingStarted]

If I claimed "Neck Problems" when I retired in 2009, and I was diagnosed with the symptoms of peripheral neuropathy during my C&P exam, should I have been awarded peripheral neuropathy in addition to the cervical spondylosis I was rated for?   

Below is the CUE I just submitted along with all the medical records.  I have to say, my new VSO, the local county guy, was a big help.  He said I might have a problem since I originally claimed "neck" and not "radiculopathy", so I attacked that issue head on in my claim.

The claim is now in eBenefits being reviewed.  Hopefully it won't be combined with my other claims, which could take a while although the VA has all the evidence and I have completed all my C&P exams. 

MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR

 I am requesting a motion to revise the date of a rating decision made by the St. Petersburg, FL VA Reginal Office on February 10, 2017 concerning bilateral peripheral neuropathy of the upper extremities.  I am requesting a new date of 1 May 2009.  The decision in question is for myself, JustGettingStarted, VA File Number #########.

 SPECIFIC ISSUE CHALLENGED:  Upon my retirement on 1 May 2009, I was service connected for Cervical spondylosis at 10%; however, I should have also been serviced connected for bilateral upper extremity radiculopathy (peripheral neuropathy) related to the cervical spondylosis. 

 This motion alleges specific errors of fact or law and why the result would have been different were it not for those errors: 

 ERROR:  The VA recognized symptoms of bilateral radiculopathy in my upper extremities during a peripheral nerve C&P exam conducted on 20 July 2009 but failed to provide service connection or a rating.  In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations.  Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).  In addition, the VA failed to apply the applicable, existing regulations or statue at that time.  Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

 FACTS: 

1.  In 2008, when preparing for my retirement physical, I claimed "neck" problems.  My miliary doctor clarified "cervical disc herniations with radicular symptoms" on the same document (Attachment 1). 

 2.  In my 2009 C&P exam it is stated “A Bone, Hand, Joint, Peripheral Nerves, and Spine Worksheet should be completed for this patient” (Attachment 2).  Both the Peripheral Nerve and Spine worksheets say to see the Bone Worksheet (Attachment 3).  On the Bone worksheet, the examiner states “bilateral hand numbness”, “numbness in the dorsum of her forearms”, and “pain radiates into the bilateral arms”.  All are symptoms of bilateral upper extremity radiculopathy.  It is also noted that I was taking Motrin and Neurontin for the nerve pain (Attachment 2).

 3.  On 5 Dec 2016, I had a C&P exam for peripheral neuropathy that states “Chronic neck pain radiating to the left arm and right hand numbness since 2000”.  (Attachment 4).  After this exam, I was service connected for left and right upper extremity radiculopathy and rated 20% bilaterally. 

4.  Peripheral neuropathy is supported by a long medical history documented in military medical records to include MRIs (Attachment 5).  These records were available to the VA during my rating decision in 2009.

In summary, the path to this error is very clear.  My medical records from 2000 to present clearly show signs of bilateral upper extremity radiculopathy supported by x-rays and MRIs.  I claimed this as a neck problem when I retired in 2009 and it was clarified to include “radiculopathy” by my military doctor.  In 2009, the VA ordered exams for Peripheral Nerves, Spine, Hands, and Bones.  When rated in 2009, somehow the radiculopathy was overlooked when it became part of my Bone exam and not reported separately on the Peripheral Nerve exam.  The symptoms continued after this exam and I had the radiculopathy properly rated in 2016 by a VA examiner who states I had the symptoms since 2000 based on the medical records provided to him.  The VA clearly should have provided service connection and a minimum 20% rating for both right and left upper extremities based on all the medical information that was on hand during the 2009 C&P exam.

This request for a new rating date of 1 May 2009 for bilateral upper extremity radiculopathy (peripheral neuropathy) at 20% and meets all qualifications for Clear and Unmistakable Error: 

- The VA had all evidence in hand, including military medical records and a C&P exam, when they did not provide for service connection and a rating for peripheral neuropathy in 2009. 

- The statutory or regulatory provisions extant at the time were incorrectly applied when the VA failed to determine all potential claims raised by the evidence at hand.

- The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.

- The determination is based on the record and the law that existed at the time of the prior adjudication in question.

 I request your favorable consideration in this matter.

 JUST GETTING STARTED

17 July 2017

Five attachments

1.  Military separation physical

2.  2009 VA C&P exam for Peripheral Nerve and Spine

3.  2009 VA C&P Bone exam

4.  Excerpt from 2016 VA C&P exam

5.  Military medical records, peripheral neuropathy

 

 

 

Edited July 22, 2017 by JustGettingStarted

[JustGettingStarted]

Hi Berta,

I just checked eBenefits and Vets.gov.  I should receive a decision by 17 Oct!  I guess the VA decided they didn't need to do another skin exam after I responded to their email.  

I will constantly be checking for online updates over the next 3 weeks.

Maybe I will get to change my name from JustGettingStated to FinallyGettingFinished.

FGS

After writing the info above I heard from my VSO.  My entire claim file is totally FUBAR!  

The VA did not address the back date request for my peripheral neuropathy.

They are denying my request for back date and increase for skin condition because they said I missed an exam.  The exam was never scheduled and I have been calling VA every two weeks to see when they were going to schedule it.

And here is the most messed up one of all.  I requested SCM-K and that it be back-dated to 2009 when I retired.  They increased my rating from 0% to 30% but denied the SCK-K because the most recent C&P exam did not show my condition related to service.  Wait, what?  How can they increase it but not relate it to my service.

I am travelling now, but when I get home and get the official letter I am finally going to contact Sen Neal Dunn's office in an official capacity.  

Edited September 28, 2017 by JustGettingStarted
Update

[Berta]

I am wondering where the VSO got his info from...I might have some email addys and phone#s for your VARO....

It sounds like my VARO-----who will often  do anything they can to convolute our issues..

"They are denying my request for back date and increase for skin condition because they said I missed an exam.  The exam was never scheduled and I have been calling VA every two weeks to see when they were going to schedule it."

That is outrageous.

Then again you have email from them- sounds like FUBAR for sure.

Dont forget- you can file a complaint with IRIS , the complaint area is a pop down. These complaints go to the VACO as well as to the RO .  And also dont forget the White House Hot Line # 855-948-2311----- they have vets handling these calls now at the complaint hot line.

 

[JustGettingStarted]

Hi Berta,

My VSO has access to the system the ROs use (VARSM???).  He could see the decision letter they are drafting.  

I have emailed Congressman Neal Dunn's Veterans representative.  I requested an appointment when I get back from my current travels.  I didn't want to take advantage of Chief Deatherage unless I needed to, but I feel it is warranted now.  He needs to see how messed up St Pete is. 

Chief Deatherage was the command chief that chose me for promotion to chief.  He knows I am a very capable person.  I talked to him previously off the record, but told him I thought I could handle this on my own at the time. 

I just did not know how screwed up this would get.  Twice now the VA has increased me on things I didn't request increases on, and denied everything else except the peripheral neuropathy (but they didn't back date it as requested).  But their increases didn't affect my overall rating, of course.

Still JustGettingStarted

[JustGettingStarted]

I was looking for anything I missed on this claim, and found something I believe is significant.  When looking through my C-File, I did not find any evidence of medical records from when I was treated by a neurosurgeon at Wilford Hall at Lackland AFB, TX.  I provided the Dr's name and location and the dates I was treated when I filed my claim in 2009.  The neurosurgeon talks about my radiating pain, numbness, tingling, and paresthesia, and says the clinical symptoms are supported by my MRIs.  

Since I think they have closed this claim and completely ignore the CUE, I guess I have two choices, either file a NOD or let it die and do a new CUE.  I have decided to file a new CUE and base it much on the information in the neurosurgeon's diagnosis.  This is information the VA had available but did not use and it is very supportive of my claim.

I am also not using the words "peripheral neuropathy" in the new CUE since those exact words are not in my military medical records.  My military medical records state I have radiating pain, numbness, tingling, and paresthesia in both arms and hands from the bulging discs.  So this is the terminology I will use in my new CUE and then VA can rate it as equivalent to upper extremity PN.  

I haven't heard back from Chief Deatherage, of Neil Dunn's office, after he requested a copy of my decision letter.  I don't know if he is doing anything to resolve these issues with St. Pete.  I know he is a busy person, but that is very disappointing.

1-2008 03 30 Wilford Hall purged.pdf

[Lemuel]

Berta, thanks for bringing me over to this post.  It is going to be very helpful in my case.  There are multiple misstatements of fact in my adjudications over the last 41 years.

And then there is the 1151, treatment with a contraindicated drug which lead to no treatment at all via a diagnosis that was out of bounds in the "Generally Accepted Clinical Practices," formerly "Generally Accepted Medical Practices and Procedures."

[JustGettingStarted]

Lemuel - I wish you better luck than I've had. 

When I originally filed this CUE, the VA sent me to an exam and they awarded bilateral Peripheral Neuropathy, but did not back date it as I requested.  The decision letter said it wasn't back dated because I had no prior diagnosis of PN.  I have to admit they were correct.  My medical records say things like "radicular symptoms", "radiating pain", and "increased numbness in the hands"--all the same symptoms as when I received a PN rating in 2016.  I have to admit they were correct that the records did not mention PN specifically.   

I have let my original CUE go, and have filed a new CUE for "Bilateral Upper Extremity Numbness, Pain, Tingling, and Paresthesia due to Cervical Spondylosis 2009 to 2016".    That is what is in my military medical records, and if granted it is rated the same as Peripheral Neuropathy.  

In other words, I carefully read why I was denied and adjusted my claim to circumvent the reason for the denial.  They cannot deny what is in my medical records, although I have a feeling they will still try to deny the CUE somehow.

Tomorrow afternoon I have another PN exam.  It seems entirely unnecessary for a claim for something that is in the past, but that is the way the St Pete office functions.  The only thing they seem to consider is what the examiner puts in a DBQ - if it isn't there, it doesn't exist.  They will not look at my active duty records or anything I've filed in eBenefits; I've learned that the hard way.  So I hope I will get a good examiner tomorrow that will listen to me and paint the picture I need them to paint.  I have organized everything and am ready to spoon feed the examiner make their job easy.  :-)

Something else I didn't do before was link my PN to an incident in the military.  After going through my records again, I realized the PN symptoms began less than a year after a traumatic accident.  The symptoms may have started right after the accident, but I had painful injuries I was dealing with (two broken elbows, a broken hand, and bruised ribs).  I spent months on pain killers and going through occupational therapy,  surgery, and more occupational therapy.  Then I had my first medical record of PN symptoms.  

I also see my non-VA neurologist tomorrow morning and have a letter typed up for her to sign.  I plan to hold onto it as "new evidence" in case the CUE claim doesn't go in my favor.  I am not having her introduce new evidence - I am just having her review and confirm what is in my military records. 

I am not worried about my current rating getting reduced.  In fact, with the flare-up rules recently coming to light, the chance of an increase would be more likely than a reduction.  

Good luck to you Lemuel!

JustGettingStarted