Shyne-I

Congratulations DeeCee!!

Congratulations MO3!! I am so very happy for you and thankful as well. I remember your post about a month ago and you sounded like you were so close to the edge and about to fall off!! I prayed for you and ask God to comfort you with grace and mercy. I feel like I've won too!! Enjoy and try to relax now and get the help that you need, and spend wisely. Congratulations again!!

Congratulations west!!

Okay, thanks John and Jbasser his name was James Henderson. Shyne

Thanks all, I will definitely do that, I have a lawyer handling my social security claim and my hearing is on Wednesday. She advised me that they had a lawyer on staff that handled VA claims. I spoke with him once right after I filed my claim for an increase in sinusitis last year but he just sounded so negative about my chances of winning my Fibromyalgia claim so I chose to go it alone. I will try to test his knowledge a little more now that I have a better understanding of how the VA operates...thanks to the information I have received from all of you!! P.S. Another thing I wanted to ask was based off some information that harleyman sent me. He said that the VA has gone back to handling sequential claims because of the backlog and wanting to boost there numbers so it seems as if they are handling claims faster; so now you can send in a new claim behind a claim that you already have pending and can get a quicker decision on the new claim. Has anyone had any experience with that yet? Shyne

Thank you Philip and John, I'm not sure what his angle was....I rephrase the question like 3 times to make sure that he understood that I was wanting to file a CUE. I even told him that I understood that you had to file a NOD within 1 year, but my understanding of a CUE was that a Clear and Unmistakable Error had been committed on the part of the RO and that it can be filed at any time after the decision became final. He still said that my opportunity to challenge the rating had past because I did not originally disagree with the decision before my year was up. Go figure....and this guy was supposed to be one of the best in Dallas!! I'm kind of afraid to deal with him on any level now!! Shyne

Hi Chuck, I posted the basis for my CUE under this forum as VA failing to correctly apply regulation. It looks to be a pretty sound argument, you can read it and tell me what you think...He told me that because I didn't disagree with the decision before it became final, I couldn't submit a CUE. Shyne

Hello all, I met with a VSO rep who was actually some kind of Vice-president in the Veteran's Service Organization. To make a long story short....he told me that it was too late for me to file a CUE on my 1995 0% rating for sinusitis. Is this true??... It seems so contrary to what I've read here on hadit. Shyne

Hi all, I know that this has been asked before but I was wondering if those who have asked this question ever found some one who would do an IMO? Thanks, Shyne

Congratulations Aggie!

Congratulations gr23932!!

Hi Philip, My 10% is for sinusitis.

Hi Basser, Well my claim is for Fibromyalgia, Depression secondary to Fibro, and TDIU. I was denied based on the VA examiner's opinion that it was it least as likely as not that it was incurred in service because Fibro has an unknown etiology and that although my symptoms were a part of the multisymptom illnesses of fibromyalgia, my symptoms were had another etiology and because I didn't receive a diagnosis until more that 14 years later, she felt it was not related to service. The additional medical records I sent it showed the continuity of the same symptoms throughout the years. I submitted a NOD against the VA examiner's opinion...it was a contradiction...how can she say that it was a part of the multisymptom illness but then say they had another explainable etiology as well. Why did I not receive the benefit of the doubt? I also said that she was not an expert, nor was she a doctor with a specialty in Rhuematology, nor is she licensed as an Independent Medical Examiner, she was a P.A. in general medicine. I gave them a second hand statement of my Rheumatologist opinion because he told me what his opinion was but because he was not licensed as a Medical examiner, he could not provide me with a written medical opinion. Is this what you needed to know or did I miss anything? Thanks in advance, Shyne

Hi all, I think that I have stuck my foot in it.....while my claim was under administrative review I sent in 7 more years of medical reports to prove continuity of symptomatology and to ask for reconsideration. Well, it was showing in ebenefits that they receive my medical records after I notified them that I disagreed with the VA examiner's medical opinion. I find out today that they are mailing me a form to request either a DRO review or a Traditional review. I am in way above my head!! I have found a VSO not too far from me and he sounds like a good representative. I am afraid that if the keep denying me because I don't have an IMO to dispute theirs, I might not have a fighting chance!! I would love some advice about what to expect or what to do from here. Thanks in advance Shyne

Oh wow ok, well once my other claim is decided. I will do just that!! Thanks, Shyne

Hi Berta, I was just asking because in his first comment he said, "CUE claims are easy for the varo. No real research or records development since it is all there and cannot be added to or detracted from. Also is easy to say NO with the only justification that your claim is not a valid cue.......next!" I want to make sure that based on what I listed about the assigned rating and regulation broken, that it meets at least a prima facie case... Thanks, Shyne

So John are you saying that you don't that I have a valid CUE?

I guess that I will just wait until my current claim is decided, I don't want to slow it down any more at this point!! Once it is completed, I will take it to my VSO and see what he suggests. Thanks everyone for your help and experience!!

Bronco, How far back would they go for an EED? Would it be the original claim date on 5/15/1995?

Congratulations....nice to see another a win.

Hi harleyman, I was wondering if you could tell me if I filed a CUE to the Atlanta RO where the decision originated from; would slow down my current claim at the Waco RO which is now my home RO?

Berta, The claim in Waco is not related to the CUE, it is for Fibromyalgia, depression secondary to Fibromyalgia and TDUI. It was denied on April 10th of this year but was under an administrative review starting on 4/30 of this year. While it was under Administrative review, I submitted seven more years on my medical records that I thought were lost, so it has been reopened and is currently in the gathering of evidence phase as of today. I was sent a 5103 waiver which is under "What we need from a 3rd party" as well as they have requested my entire personnel record as of 7/8 from a 3rd party. I don't know why they have requested my entire personnel record....unless it's because I recently started receiving medical treatment from the VA??? The increase in sinusitis was originally part of this claim, but they granted the increase to 10 percent in August of last year.

Hi Carlie the Reasons and Bases are as follows: The veteran contends that service connection should be granted for headaches, sinus condition, and urinary tract infection, based on onset of the conditions during service. Service medical records were reviewed and considered. Enlistment examination 11-18-93, noted no abnormal findings regarding the claimed conditions. The veteran was evaluated in March 1994 for complaint of sinus congestion. Assessment was upper respiratory infection. Evaluation in July 1994 noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches. Evaluation in August 1994 complaints of headaches and slight ear pain. Examination noted right maxillary sinus tenderness. Assessment was allergies. The veteran was evaluated in July 1994 for complaint of headaches. Assessment was tension headaches. Service medical records indicate treatment for a urinary tract infection in May 1994. Separation examination 11-18-94, noted history of frequent tension headaches and frequent sinus infections. The report of the VA examination 02-17-95 was reviewed. The veteran complained of sinus headache, chronic sinus problems, and post-nasal drip with sore throat. She reported that this condition has existed since 1993. She also gives history of upper urinary tract infection in May 1994 that resolved with treatment. VA examination noted the following: There was some slight tenderness over the right maxillary sinus and frontal sinus area. The nasal passages were slightly congested. X-ray examination of the sinuses showed clouding of the frontal sinuses suggestive of frontal sinusitis. Urinalysis was normal. Diagnoses were mild frontal sinusitis, history of urinary tract infection, and sinus headache. 1. Service connection for sinusitis. Service connection is granted for sinusitis as the evidence shows onset of the condition(s) during military service. In determining evaluations for sinusitis, consideration is given to the frequency and severity of recurrences, and the severity of symptomatology such as headaches, sinus discharge, and crusting or scabbing of the mucous membranes. The evidence shows mild or occasional symptoms with X-ray evidence of sinusitis which warrants a noncompensable evaluation. 2. Whether the claim for headaches, and urinary tract infection is well grounded. Service connection may be granted for a disease which began during active military service or for an injury incurred during active military service or active duty training. Additionally, service connection may be granted for specific diseases or conditions which are, by law, presumed to have been incurred during service if manifested to a compensable degree within a specified period of time, generally, one year. Service connection may also be granted for conditions which existed prior to service if the condition is shown to have been aggravated by service. The condition of sinus headache is considered a symptom of sinusitis. Service medical records show treatment for a tension headache however, this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation. Service medical records show treatment for a urinary tract infection however, this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation. The law provides that a person who submits a claim for VA benefits must submit evidence sufficient to justify a belief that the claim was well grounded. A well grounded claim is a 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. A well grounded claim for service connection must be accompanied by evidence which shows the claimed condition exists and is possibly related to service. A claim that is not well grounded is an incomplete application. In order to satisfy the requirement of a well grounded claim the veteran must submit medical evidence of treatment of chronic headache condition and urinary tract infections and evidence of treatment subsequent to service to the present time which tends to show the condition(s) still exist. Unless such evidence is received within one year of the date of this notice, no benefits may be awarded based on incomplete application. Sorry so long Carlie but I wanted to make sure that you had all the information. Thanks

Thank you Berta!! , I do have the old decision and the Atlanta RO was the author of the decision. I was wondering if I provide them with all the documentation, will filing a CUE with the Atlanta RO, slow my current disability claims down with the Waco RO?(Waco is now my jurisdictional RO and they currently have my claims folder)

Hello Everyone, I was wondering if anyone can tell me if I have a good chance of winning a CUE based on the following: I am asking for an earlier effective date of my increase in sinusitis based on a CUE in my May 15,1995 rating decision where in the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts.(See Oppenheimer v. Derwinkski, 1 vet. App. 370,372(1992)). While the RO noted that the condition of sinus headache is considered a symptom of sinusitis, they failed to grant me a compensable rating for sinusitis with headaches. 38CFR 4.97 Diagnostic Codes 6510-6514 the law that existed at the time of the prior adjudication in question includes: Chronic sinusitis with only x-ray manifestations and mild or occasional symptoms warrants a noncompensable rating; moderate symptomatology with discharge or crusting or scabbing with infrequent headaches warrants 10 percent . A 30 percent evaluation is warranted for severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 50 percent evaluation is post operative, following a radical operation with chronic osteomyelitis required repeated curettage, or severe symptoms after repeated operation. Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity as a result of enumerated disabilities. 38 CFR 4.7 states where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. The medical evidence of record is as follows: March 1994 evaluated for complaint of sinus congestion July 1994 evaluation noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches. August 1994 evaluation noted complaints of headaches and slight ear pain, examination noted right maxillary sinus tenderness, which required 24 hrs. SIQ. The separation examination noted history of frequent tension headaches and frequent sinus infections. VA Examination dated 2/17/95 was reviewed with complaints of sinus headache, chronic sinus problems and post-nasal drip with sore throat. Diagnosis were mild frontal sinusitis, history of UTI, and sinus headaches. I was assigned a noncompensable rating in May 1995 based on diagnosis of mild frontal sinusitis. My basis for a CUE is that the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. The RO did not correctly apply the facts of the total medical evidence to the correct statutory regulation in 38 CFR 4.97 where my contention is that my symptomatology and disability picture, including the incapacitating episode in August 1994 more nearly approximated the higher rating of at least 10 percent based on 38 CFR 4.7 I would appreciate any and all feedback Thanks!!