JustGettingStarted

Asknod - Don't you talk about holding a little something back just in case you need to submit new evidence to keep your claim open? I've heard that somewhere.

Berta, Maybe you could post Look v. Dewinski somewhere where others can find it. I even searched the US Court of Veterans Appeals and could not find the text. JustGettingStarted ------------------------------------------------------------------------------------------------------- Look v. Derwinski, No. 90-476 UNITED STATES COURT OF VETERANS APPEALSNo. 90-476ROBERT W. LOOK, APPELLANT, V. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS , APPELLEE. On Appeal from the Board of Veterans’ Appeals and On Appellee’s Motion for Summary Affirmance and to Stay Further Proceedings(Submitted March 22, 1991 Decided February 6, 1992)Arnold Van Etten was on the brief for appellant.Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General Counsel, PamelaL. Wood, Deputy Assistant General Counsel, and Carolyn F. Washington were on the pleadingsfor appellee.Before NEBEKER, Chief Judge, and MANKIN and IVERS, Associate Judges.MANKIN, Associate Judge, filed the opinion of the Court, in which IVERS, AssociateJudge, joined. NEBEKER, Chief Judge, concurring in part, filed a separate opinion.MANKIN, Associate Judge: Appellant, Robert W. Look, has filed several claims with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) since 1962 for disability benefits for the residuals of surgery for a herniated intervertebral disc. Appellant contends that he sustained neurological damage as a result of surgery conducted at the VA Medical Center in Madison, Wisconsin on April 27, 1960. R. at 34. Specifically, appellant contends that he suffers from left foot weakness and left foot drop (an extended position of the foot caused by paralysis of the flexor muscles of the leg). The veteran appeals from the February 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision, which denied entitlement toservice-connected disability pursuant to 38 U.S.C. § 1151 (formerly § 351) and 38 C.F.R. § 3.358(c)(3). Because the BVA decision is based on an invalidated regulation and contains reversible error of both fact and law, we reverse the BVA decision and remand the case to the BVA with specific instructions to proceed in a manner consistent with this opinion. I. Factual Background 2 Robert W. Look served in the Army for eight months during World War II. R. at 13. His induction physical examination revealed no defects and indicated that he was physically and mentally qualified for general military service. R. at 8-11. A physical examination of June 18, 1943, conducted before appellant was honorably discharged revealed that his “Right knee and ankle jerks brisker than on left. No Clonus. Gait shows a slightly widened base and is a little asynergic. Neurological examination otherwise negative.” R. at 15. No foot drop was noted during or immediately after service. On March 7, 1960, appellant was admitted to the hospital for “pain and numbness in the left leg.” Upon examination and X rays, it was determined that appellant had “an extrusion of lumbosacral disc and that a laminectomy was indicated to correct this.” R. at 32. On April 26, 1960, the VA Regional Office (VARO) rating board denied service connection for psychoneurosis mixed type and rupture of nucleus pulposis with nerve root compression L-4, L-5. R. at 44. On April 27, 1960, he was “taken to surgery and a laminectomy was performed with removal of a small piece of disc, L-5 S-1 on the left.” R. at 34, 36. On the very same day the surgery was performed the “Record of all Pertinent Complications” noted that “[t]here is some numbness in the left foot with accompanying foot-drop. Very weak in the legs. . . . There appears to be Nerve Cell damage. Has extreme pain in back and legs.” R. at 37, 39. Dr. J.K.Curtis examined appellant on June 16, 1960, and noted “Ankle jerks zero. Walks with left foot drop. . . . Cannot walk on left heel. . . . The nerve root could be removed only with considerable effort. It is my opinion in doing so, there was nerve cell damage done in the central nervous system.” R. at 31. Dr. J.T. Mendenhall approved Dr. Curtis’ diagnosis of “Damage to central nervous system during surgery.” R. at 31. On June 23, 1960, Dr. H.E. Groth noted that even after “the course of physiotherapy the patients [sic] foot-drop . . . was unchanged. Patient has extreme pain at times.” R. at 41. On June 27, 1960, Dr. Groth also noted that appellant “could not get on the heel of his left foot due to inability to dorsiflex the foot to that extent.” R. at 34. After applying for compensation and pension benefits, on October 24, 1962, appellant was re-examined by VA physicians. R. at 56-64. One physician’s diagnosis was “Herniated intervertebral disc L5 S1, operated residuals of- mild foot drop and weakness in foot.” R. at 59. A November 27, 1962, rating decision granted appellant a 70% combined rating for non-serviceconnected disabilities: 50% anxiety reaction, competent and 40% for herniated intervertebraldisc L-5 S-1, operated, residuals of with mild foot drop and weakness, left foot. R. at 65. Appellant was examined on March 26, 1963, and December 8, 1965, with the same diagnosis of “Herniated intervertebral disc, L-5 S-1 residual weakness left foot and ankle.” R. at 70, 75. On December 20, 1965, the VARO maintained the previous rating decision, but denied appellant’s claim of service connection for a nervous condition and arthritis. R. at 81. The BVA 3in a May 9, 1967, decision affirmed the denial of entitlement to service connection for arthritis and a nervous disability as no new factual basis was established by appellant. R. at 87. On July 6, 1973, the VARO affirmed the previous rating decision and denied service connection for hypertrophic arthritis and polyneuritis and found “no evidence of carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of indicated fault in the surgery for veteran’s back exists on the part of the Veterans [sic] Administration.” R. at 88. On December 12, 1973, the BVA denied entitlement to service connection for anxiety reaction and to disability compensation for postoperative residuals of a herniated intervertebral disc. R. at 94. On October 6, 1975, the BVA found no obvious error in the 1967 BVA decision denying service connection for arthritis, therefore, the veteran’s claim was denied. R. at 99.On August 15, 1977, the VARO refused to reopen the veteran’s claim, finding that no new factual basis had been established. R. at 107. On August 30, 1978, the VARO affirmed the prior rating decisions maintaining the combined 70% non-service-connected disability rating established since 1962. R. at 108. On June 1, 1979, the BVA denied benefits for service connection for arthritis of the spine and entitlement to disability benefits for postoperative residuals of herniated disc pursuant to provisions of 38 U.S.C. § 1151 (formerly § 351). R. at 116. On November 29, 1988, the VARO increased his non-service-connected pension combined rating to 100% as a result of carcinoma of the bladder found earlier that year. The board also awarded appellant a special monthly compensation “on account of carcinoma of the bladder and additional disabilities of anxiety reaction and herniated intervertebral disc, independently ratable at 60% or more from 1-15-88 [the date of the bladder surgery].” R. at 176. No service connection was found for the spinal injury due to the operation performed in 1960. R. at 177. In 1989, appellant submitted letters from Dr. Douglas A. Schmid, Dr. Eugene F. Herzberger, and Dr. S. Chi stating that his current condition, including the left foot drop, was caused by complications of the laminectomy performed in 1960 at the VA Medical Center in Madison, Wisconsin. R. at 179, 180, 181. While the VARO reopened appellant’s claim on February 21, 1989, it denied service connection under 38 U.S.C. § 1151 on February 24, 1989. R. at 182. The VARO confirmed its rating decision on June 5, 1989. R. at 184. A timely appeal to the BVA followed. On February 14, 1990, the BVA denied entitlement to disability benefits for residuals of herniated disc pursuant to 38 U.S.C. § 1151. Robert W. Look, BVA No. 90-04499, at 7 (Feb. 14, 1990). From that BVA decision, the veteran presents his appeal to thisCourt. II. Analysis4A. The issue in this case is whether the BVA erred in determining that appellant was not entitled to disability benefits for residuals of a herniated disc pursuant to 38 U.S.C. § 1151 (formerly § 351). Section 1151 of title 38 states in pertinent part: Where any veteran shall have suffered an injury or an aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . .not the result of the veteran’s own willful misconduct, and suchinjury or aggravation results in additional disability to or the death of such veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. This statute controls the disposition of this case. This Court has recently held that, [t]he statute imposes only two limitations on the granting of service-connected benefits; first, as long as the injury or aggravation occurs `as a result of’ exposure in one of four circumstances and, second, is not a `result of such veteran’s willful misconduct,’ benefits will be made available. . . . This language reveals that Congress considered the issue of fault while drafting the statute and suggests that, although fault of the veteran is relevant to a determination of eligibility for compensation, the fault of the VA personnel is not. Gardner v. Derwinski, 1 Vet. App. 584, 587 (1991). The statute does not require fault, and therefore, 38 C.F.R. § 3.358(c)(3) was held “unlawful as exceeding the authority of the Secretary and in violation of the statutory rights granted to veterans by Congress under section 1151.” Id. at 6. The BVA decision relies on its finding that the “evidence does not otherwise show that there was accident, negligence, or other fault on the part of the VA in connection with the surgery in 1960.” Look, BVA No. 90-04499, at 6. Clearly, this determination is based upon the invalidated language of 38 C.F.R. § 3.358(c)(3). Because the BVA decision was premised on a regulation that has been held invalid, normally its decision would be vacated and the case remanded for readjudication under the proper statutory standard. Here, however, readjudication is not necessary as discussed below in section C of the Court’s opinion. B.When a veteran attempts to reopen a previously denied claim based upon new evidence, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the BVA must determine whether the evidence is `new and material’. 38 U.S.C. [§ 5108 (formerly § 3008)]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the 5 merits of the veteran’s claim in light of all the evidence, both newand old. Id. The claimant bears the initial burden of presenting “new and material” evidence under 38 U.S.C. § 5108. The first prong of the Manio analysis appears to have been satisfied, since the BVA proceeded to review the merits of appellant’s “reopened claim”. See Look, BVA 90-04499, at 5. In such a case, as presented here, where “the BVA determines that evidence is `new and material’, reopens and reconsiders the claim, and once again denies the claim, that decision is subject to review on appeal by this Court based upon the entire record because the decision of the BVA was required to be based upon all evidence and material of record.” Manio, 1 Vet.App. at 146. The 1990 BVA decision focused on “whether the evidence received is new and material and of such weight as to establish a new factual basis in support of an allowance of benefits. . . .” Look, BVA No. 90-04499, at 5 (emphasis added). While the VARO found the recent evidence new and material when it reopened appellant’s claim, the BVA concluded “that the additional evidence received subsequent to the Board’s prior decisions does not establish entitlement to the benefits claimed.” Id. at 6 (emphasis added). Just as in the Manio case, the February 14, 1990, BVA decision “reveals that the BVA erroneously failed to consider the evidence submitted by appellant in the course of prior appeals. . . . the BVA was obligated to consider all relevantevidence offered by appellant. Because of this error the BVA’s decision must be set aside.” Manio, 1 Vet.App. at 146-47. The BVA decision was not based on the complete record as required by 38 U.S.C. §§ 5108 and 7104(b) (formerly §§ 3008 and 4004). This case, however, unlike Manio, warrants a reversal and remand for further proceedings for the reasons discussed below. C.1. Clearly Erroneous Fact FindingWhen reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly §4061), which states that: (a) In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall–. . .(4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. 6A factual finding “is `clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 542 (1948); Brannon v. Derwinski, 1 Vet.App. 314, 317 (1990); Spencer v. Derwinski, 1 Vet.App. 125, 126-27 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). If the [factfinder]’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert, 1 Vet.App at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12 (1985)). The Court must now determine, under the standard announced by theSupreme Court and in Gilbert, whether the BVA’s factual findings are clearly erroneous. In his reopened claim, the veteran presented medical opinions from three different physicians, who all agreed that the veteran’s left foot drop is directly related to the damaged nerve root caused by the laminectomy and disc removal performed in 1960. With a reference to “unexpected complications”, Dr. Schmid stated after reviewing all of the medical records, “I think the evidence does point to his disability being related to his surgery in 1960. This is corroborated with a recent neurological evaluation, including electromyography and nerve conduction velocities.” R. at 179. Dr. Chi concluded that the nerve root damage “was [an] unexpected complication from [the] previous surgery, but the current symptoms are still from the previous laminectomy and dysc [sic] removal.” R. at 181 (emphasis added). The most compelling evidence is from Dr. Eugene E. Herzberger, who after reviewing all of the medical records came to the conclusion that: All these records document the fact that you have developed a left foot drop following your lumbar disc surgery of 1960. This foot drop could be considered as an untoward event following lumbar disc surgery because it usually does not occur and it is only in very rare instances where it happens due to specific difficulties which the surgeon may encounter during the surgery.R. at 180 (emphasis added). Despite the overwhelming evidence submitted and no evidence to thecontrary, the BVA concluded that “the additional evidence received subsequent to the Board’s priordecisions does not establish entitlement to the benefits claimed.” Look, BVA 90-04499, at 6.Before appellant submitted the new and material evidence, the Board and the rating boardsbefore it continually ignored and disregarded the following reports to deny service-connecteddisability under 38 U.S.C. §1151: (1) the April 27, 1960, medical report noting “numbness in the leftfoot with accompanying foot-drop. . . . There appears to be Nerve Cell Damage.” R. at 37, 39; (2)the June 16, 1960, examination by two physicians noting, “[w]alks with left foot drop. . . . The nerve 7root could be removed only with considerable effort. It is my opinion in doing so, there was nervecell damage done in the central nervous system. . . . Damage to central nervous system during surgery.” R. at 31; (3) the October 24, 1962, examination concluding “Herniated intervertebral disc L5 S1, operated residuals of- mild foot drop and weakness in foot.” R. at 59; (4) the March 26, 1963, and December 8, 1965, examinations confirming residuals of the surgery as “weakness left foot and ankle.” R. at 70, 75; (5) a statement by a doctor who examined him in February 1960 stating that “[h]e definitely didn’t have a limp or foot drop . . . at this time. He did however have these ailments ever since surgery. . . .” R. at 82. The Board, and the rating boards before it, have effectively denied the very existence of these reports by concluding, as the 1979 BVA decision did, that “entitlement to disability benefits for post operative residuals of herniated disc pursuant to provisions of 38 United States Code [1151] is not established.” R. at 116. After reviewing the newly submitted evidence together with the previous medical records as required by Manio, the BVA’s factual determination is definitely clearly erroneous.The Court is left with the “definite and firm conviction that a mistake has been committed.” United States Gypsum Co., 333 U.S. at 395. Where, as here, “a plausible basis is lacking, this Court will set aside factual findings as clearly erroneous.” Brannon, 1 Vet.App. at 317. The only conclusion that can be drawn from the record is that appellant’s left foot drop was the direct result of the laminectomy performed in VA Medical Center in Madison, Wisconsin on April 27, 1960. 2. Clear and Unmistakable ErrorIn this appeal, appellant argues that the rating board and the BVA failed to apply the correct statutory and regulatory provisions to the facts of his case and requests that the Court overturn the 1990 BVA decision under 38 U.S.C. § 7261(a)(3)(A) as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Br. of Appellant at 4-5. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.” Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991) (discussing 38 C.F.R. § 3.105 (1990); accord 38 C.F.R. § 2.1009(a)(1947)). Here, in his reopened claim, the veteran has raised a “question that the rating board and the BVA had before them the relevant and correct facts.” Cf. Thompson, 1 Vet.App. at 253. Claims under 38 U.S.C. § 1151 “shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.” It has consistently been the Secretary’s position that the left foot drop existed prior to the 1960 surgery. The VA relies on a medical report that states that the veteran had a left slapping gait with weak dorsiflexion of the left foot, yet there is no medical diagnosis of left foot drop at any time prior to April 27, 1960, anywhere in the record. In reviewing he entire record before us, the Secretary has not presented an iota of evidence that appellant’s left 8foot drop existed prior to the surgery. Yet even if the left foot drop was a preexisting condition, theVA at no time ever considered that the condition was unquestionably aggravated by the 1960 surgery, and thus would be compensable under 38 U.S.C. § 1151. For this reason, the BVA in its February 14, 1990, decision clearly erred in rejecting appellant’s argument that clear and unmistakable error had been committed. Neither the 1990 BVA decision, nor any of the other BVA decisions, nor any of the rating decisions as far back as 1973 ever applied section 1151 properly. Even when appellant first applied for residuals of the surgery, the VA failed to consider section 1151 at all, but awarded appellantbenefits for a non-service-connected pension in its November 27, 1962, rating decision. In 1962 andthereafter, the VA has failed to apply the correct statutory and regulatory provisions to the correctand relevant facts. See Thompson, 1 Vet.App. at 253. The substantive rights of the veteran have been prejudiced by the Government’s failure to apply 38 U.S.C. § 1151 properly and thus, this misapplication of the law constitutes clear and unmistakable error committed by the VA in the 1962 rating decision. See Akins v. Derwinski, 1 Vet.App. 228, 232 (1991); Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990), appeal dismissed for failure to prosecute, No. 91-7020 (Fed. Cir. Feb. 22, 1991). The VARO and the BVA further erred when they incorrectly applied 38 C.F.R. § 3.358(c)(3), hich allows compensation to be paid under 38 U.S.C. § 1151 when the injury or aggravation occurs as a result of hospitalization: However, compensation is payable in the event of the occurrence of an “accident” (an unforseen, untoward event), causing additional disability or death proximately resulting from Department of VeteransAffairs hospitalization or medical or surgical care. 38 C.F.R. § 3.358(c)(3) (emphasis added), invalidated by Gardner v. Derwinski, 1 Vet.App. 584 (1991). Regardless of the fact that the evidence before the VARO in 1962, as discussed above, indicated nerve cell damage immediately after appellant’s operation, and evidence before the BVA in 1990 contained statements by three doctors to the effect that appellant’s left foot drop was “untoward” and “unexpected,” neither tribunal correctly applied section 3.358(c)(3) to this evidence. While 38 C.F.R. § 3.358(c)(3) has been rendered invalid, the regulation, in a similarly worded provision, has been applicable since the time of the 1962 rating decision. The Court hasconsistently held “that the BVA is not free to ignore its own regulations.” Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Even under a correct application of the law as it previously existed, requiring fault, clear and unmistakable error occurred when the VARO and the BVA ignored the portion of the regulation which would have allowed compensation in the event of an “accident.” Thompson, 1 Vet.App. at 253. See Oppenheimer, 1 Vet.App. at 372. 9Having concluded that administrative error was committed in 1962 and thereafter, the 1990 BVA decision must be reversed under 38 U.S.C. § 7261(a)(3)(A) (formerly § 4061) and remanded with instructions. On remand, the Secretary is instructed to amend the 1962 rating decision to award benefits as if service connected under 38 U.S.C. § 1151 and determine the appropriate disability rating for appellant. Where the evidence establishes clear and unmistakable error, as the facts reveal here, a reversal of a prior decision “has the same effect as if the corrected decision had been made on the date of the reversed decision.” 38 C.F.R. § 3.105(a). In accordance with the regulation, the corrected rating decision must be given the same effect as if rendered on November 27, 1962. See Akins, 1 Vet.App. at 261. III. ConclusionThe Secretary’s motion for summary affirmance is DENIED, and the decision is REVERSED and REMANDED for disposition in accordance with this opinion. It is so ordered.NEBEKER, Chief Judge, concurring in part: I concur in the reversal on the basis of Gardnerv. Derwinski, 1 Vet. App. 584 (1991), and would remand consistent with that decision.

Hi Berta, Here is a hyperlink https://veteranclaimsresearchcases.wordpress.com/2009/03/09/look-v-derwinski-no-90-476/ I guess my claim will be all ready to go to appeal since I haven't been fortunate enough so far to get an RO that can read. When I sat down with my new VSO and went through this stuff case-by-case, he said if I have to appeal I should go before a judge in DC. He said I had my stuff very organized and a BVA judge needs to see and hear the stupidity I have been through. However, before that happens I will try to find some new evidence and request to present it to the RO personally.

Thank you very much Oceanbound. I edited it out of the signature block and didn't catch it in the middle.

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

I can't see any document. Did you attach one?

Broncovet, I think you need to read the original post. The CUE was because I was given 0% for an eczema-rated condition when taking systemic medications. The proper rating for eczema-like conditions when taking constant systemic medications is 60%. My 2009 rating said I had the condition and I was taking constant medication, but failed to give me the proper rating.

An update on this CUE. I sent a request for reconsideration to St Pete based on the fact that the C&P examiner had "overlooked" the list of medications I had provided him. Also, there were several items of evidence that I had provided to the VA that were not in the C-File. This CUE and my other denied claims have all been reopened with my original "Intent to File" date. Now it is time to watch and wait again.

My claims were closed on 5 Jun. It was obvious that lot of evidence was completely overlooked so I did a letter to request reconsideration. The claims all opened back up the following week. Does this mean I do not need to worry about a NOD date at this time? In other words, if my claims are not decided by Jun 2018, will I need to file a NOD, or does getting the claim re-opened reset the NOD deadline to one year from the date they are closed out in the future? The new estimated completion dates are Jan - Aug 2018. Thanks, JustGettingStarted

Just an update on my claims. I did the letter to request reconsideration. Now all my claims on eBenefits have been reopened on eBenefits with a new estimated completion date of Jan to Aug 2017. Also, everything is listed in Vets.gov as "Under Review". The VA said they sent me a Development Letter on 16 Jun, which I have not received yet. Under "Needed from Others" in eBenefits, it looks like the VA has dropped the need for a C&P exam for the endometrium ablation - I think I managed to convince them it wasn't going to grow back and an exam would be a waste of time and money. I have also checked out the local VSO and he seems OK. I popped in on him when I was in the area and got lucky and was able to talk with him for a good while. He knows I have a lot of complex stuff going on, but also seems to know when to seek help from his associates located at the VARO. I like that and he seems like he really enjoys helping. I immediately changed my POA on eBenefits, but the VARO told me it will take up to 30 days for it to take effect. Now it is playing the waiting game again. JustGettingStarted

The DAV VSO I just "fired" is Michael Fuste. The one before that the didn't follow up on my CUE for 10 months, despite several requests from me, was Michael Tolliver. I hope I am doing the right thing by switching to my local VFW VSO. I can at least sit down and look him in the eye and he seems like a nice, knowledgeable fellow that is willing to admit he doesn't know everything, but knows where to get help. If I am giving out too much info here with the names I will be happy to edit out. JustGettingStarted

Berta, My DAV VSO continues to be MIA. I have emailed the DAV at St Pete to request help on this. I sent my request to robert.anderson6@va.gov. Robert “Dan” Anderson / Supervisor DAV Regional Office | 9500 Bay Pines Blvd., Room 232 | St. Petersburg, FL 33731 Main Office (727) 319-7444 | Fax (727) 319-7775 Update - I met with my county VSO today and I like him. He admits my claims are more complicated than what he normally sees, but he had a good friend at the VFW regional office at St Pete, Richard Epps, who he says is extremely knowledgeable and works well with the rating officers. The local VSO seemed pretty knowledgeable and knows to ask questions if over his head. He never said anything critical like "that will never work" or "don't waste your time". I am going to change my POA and then meet with him again to give my claims a deeper look. I also got my husband to go with me because he has some claims work to do too. JustGettingStarted

Thanks everyone for posting this. I just read the entire thread because I have a similar CUE in the works for a skin condition rated the same as eczema. However, my CUE is fubar at the St. Pete VARO right now. They ignored the systemic medication I am taking back in 2009, and then in a recent C&P exam where they didn't include it in my medications. They never asked me if I was taking medications - just marked "No" on the form. I have posted my story in a new thread on this CUE forum and am getting help from Berta now. My VSO is no help and I have just written to the DAV to request better support. JustGettingStarted

jfrei, Unfortunately nothing is permanent unless you have had the condition for 20 years with no change. However, as you have the condition longer or as you get older (over 55), it becomes harder for the VA to lower your rating. If the VA believes you can improve in the near future, your letter should say they will re-examine you in 3 to 5 years. If the VA has cause to believe you have improved, they can call for a re-examination at any time. However, if you've had the condition unchanged for more than 5 years or you are over 55, there should be "unusual circumstances" before they reschedule an exam. And then they have to prove sustained improvement before they can downgrade your rating. If you are 100% total and permanent, you are allowed to work if you want to. That is not the same for people with temporary IU. I hope this answers some of your questions, although it may not be entirely the answers you were hoping for. JustGettingStarted

Berta, Attached is the DBQ from my C-File and pages from the decision letter (I requested a copy of my C-File last July well before my CUE and it just arrived a week ago). The main issue is on the DBQ; they did not check the block that says I am taking daily systemic medication - that is wrong, wrong, wrong! In the C-File, they have documentation I submitted. 1. The MTF Bluebutton record that shows I have taken medication regularly since 2004, highlighted in yellow. 2. Citations where the veteran was awarded higher than 0% for the exact same condition when on systemic medication (the ratings depended on how often they were taking medication). 3. MFV records showing my primary diagnosis in 1997 and being put on systemic medication in 1998 to prevent flare ups. There were other errors in this decision, but not as big as this one. They did not service-connect me for hemmorhoids although I provided military medical records from 2007 that showed a diagnosis, and civilian records from 1 month after I retired in 2009 to present. They did not give me ICS, which I knew was going to be an uphill battle. I was diagnosed for years while in the military with chronic constipation. I did not get service connected in 2009 because there wasn't any "pathology" to show why I had chronic constipation. One month after I retired I was diagnosed with IBS. And finally, they deferred my CUE for SMC for loss of use of a creative organ so they can schedule an exam. Do they honestly think my endometrium will grow back? I provided them medical records when I made the claim. I also have another decision letter for peripheral neuropathy in my arms and hands that I am dealing with. I was award 20% for each side but from what I read on the DBQ, many of my symptoms were rated moderate to severe so I believe I should be getting 40/30. I also want to CUE that one because I was looking at my records and when I retired in 2009 I claimed neck condition and that I was taking neurontin. A quick look in my records show that I was taking neurontin because of the numbness in my hands caused by the neck condition. Right now, I want to concentrate on the CUE for the eczema-like condition. That is the big one, followed by the CUE for SMC. On the eczema condition - I have attached the two pages from the development letter, along with most of the skin diseases DBQ. On the skin diseases DBQ, they made a major error when they did not list the medications I have been taking since 1998. I noticed on the skin diseases DBQ, they do not list what evidence was reviewed - I see this on my other DBQs in section 3. Why is this? I have also attached my letter requesting reconsideration. Thanks for any and all help. JustGettingStarted EczemaLikeforHadit.pdf Request for Reconsideration-redacted.pdf

I sent this CUE to Berta on another thread and she thought it was really good. However, I just got a denial from the St. Pete VARO today (they are really illiterate). At issue is the fact that any conditions similar to dermatitis or Eczema are rated under code 7806. These conditions can be rated on amount of body they cover, or more importantly, how often you have to take "systemic medication" for them. Systemic medication is usually defined by the VA as oral medications or injections, but not topical medications and if you take it constant or near constant, the rating is 60%. In the denial letter, I am still service connected for a skin condition at 0% as I was in 2009, but the VARO completely ignored the fact that I have been on constant systemic medication since 1998 and should be rated at 60%. The medication was completely ignored in the decision. I provided military medical records from 1998 where I was put on constant medication, and Bluebutton pharmacy records from a military facility that date back to 2004. All that evidence was submitted with my CUE. I thought this was going to be so cut and dried, and now I know why so many people complain about the VA ignoring the evidence and why the appeal system is so backed up. I guess I will be getting on the hamster wheel and ask for a reconsideration/DRO Review/Appeal. Anyway, I attached a redacted copy of the CUE that I did in the event someone can use it as an example. I hope it works better for them than it did for me. JustGettingStarted Motion for Cue-REDACTED.pdf

I started getting paid for a condition last February. It was one of several I claimed. EBenefits still shows that one condition as part of my open claim although they added a percentage for it and sent me a letter. So it sounds normal.

Thank you Berta - you made my day. I learned by reading websites like this and reading what is in Title 38 and the manual. From Title 38, I knew the exact requirements for a CUE and used that. I also learned by reading a lot of BVA appeals. I was a communications project manager in the military and did a lot of writing to try and get my projects funded--I had to be concise and provide solid, factual justification. That is all I did here using examples of what I found online to use as an outline. Also, it helps when it is a clear-cut case. For this CUE and the one for SMC, I don't think I need to jump through hoops to prove my case. From everything I read, that is the way a CUE should be. I am considering doing a third CUE, but I need to do more research first. I also need to concentrate on the NOD for my peripheral neuropathy.

Hi Berta, Did you see the copy of my CUE I submitted? It is on page 3 of all this. I have used IRIS before without much luck for a medical care issue. I use eBenefits and that is how I submit everything now so there is proof of what I submitted. I don't think I need to do a complaint right now unless I need to complain about the unresponsive VSO I have. I sent him 3 requests in the last 2 weeks without a single response. I have been trying to decide if I should complain about the lost CUE. When I emaileded my second VSO and told him I wanted to do an inquiry on what happened to it that is the only time he has called me. I told my husband that the VSO must not have wanted to do anything in writing to keep it off the record. I think the main reason to complain might be to keep the same from happening to another Vet. Please look at the CUE attachment on page 3 when you have time. I may have given it an incorrect title, but I believe I covered all the things required for CUE. The medical condition has been consolidated with my other claims and is listed as an Increase to my SC condition in eBenefits. I know there are many vets out there that need your help much more than I do--I can afford to take my time on this. Thanks, JustGettingStarted

PS - I am on my second VSO from the DAV in St. Pete. He is knowledgeable, when I can get in touch with him. I was given a second VSO without a request from me. He is very slow in answering emails and sometimes I never get a response. He called me once, when I was about to go up the chain to find out why the VA didn't have my CUE.

i just learned something new. The reason I did Motion for Revision was the only CUE examples I found were for the BVA level. My CUEs are at the VARO level. In eBenefits they have listed my two CUEs as increases. Oddly enough, I have another claim where I requested service connection, and they have listed it as REP for Reopen. That one will probably be SC at 0% but it was still an oversight on VA's part when I retired and I want it corrected now. I figure it will be difficult for VA to give me the SMC I am entitled to for endometrial ablation without CUEing it. The same goes for the Eczema-like condition since it happened 10 years before I retired. I have attached the CUE I did for the Eczema-like condition. That is the CUE that is worth the most if I win. It has been sanitized but should still be very clear on how I attacked it. Thank you so much for taking a look at this. I still have more claims to submit. I need to retroactively claim 100% temporary disability for when I had surgery on my service-connected knee - I am working on getting my physical therapy records so I can show how long I was in recovery. I am doing the same for my husband because he had surgery on two different service-connected conditions. We did not know about the 100% temporary disability and were not working so we don't have letters from our doctors saying how long our convalescence was. I think the VA owes me 2 months for my knee, 1 month for my husband's hand, and 3 months for his shoulder... Since my husband is only SC for 20%, 4 months of total disability will be significant, but I have to get his medical and physical records before I file. JustGettingStarted Motion for Cue-REDACTED.pdf

Hi Berta, Thanks for chiming in. Neither of my CUEs have been denied so far. I filed both in the last year after going over my decision package from my retirement in 2009. I resubmitted the CUE for Eczema-like condition, that was lost for 10 months, within my original Intent to File date. I got nervous at the 10-month point and followed up with the VA instead of my VSO to find out the VA says they never received it (VSO says VA ignored it). I filed the second CUE this week for the SMC I should have received when I was service connected for endometrial ablation in 2009. It was from your blog that I discovered I could file a CUE for SMC - thank you so much. This website and the podcast have helped me so much. The big one is the CUE for the eczema-like condition. It comes to over $40K in back pay. Below is what my 2009 decision letter said (I redacted the name of my disease and medication). What it doesn't say is that for near-constant systemic medication, the rating is 60%. I have been on constant systemic medication since 1998 and I retired from service in 2009. “12. Service connection for [eczema-related condition] . Service connection for [eczema-related condition] has been established as directly related to military service. A noncompensable evaluation is assigned from May 1, 2009. A noncompensable evaluation is granted if the record shows dermatitis or eczema involving less than 5 percent of exposed areas affected, and ; no more than topical therapy required during the past 12-month period. A higher evaluation of 10 percent is not warranted unless there is evidence of dermatitis or eczema involving at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Service treatment records show that you were found to have [eczema-related condition] in March 1997. Upon VA examination you reported that you continue to take [systemic medication] on a daily basis to reduce flares of the condition, which occur once or twice yearly.” I have read BVA decision after BVA decision, dated before and after my claim, in which the veteran received 0 to 60 percent for my condition--depending on how often they take medication. I have to be on medication constantly or I have painful flare-ups at least every month. My pharmacy records at Tyndall AFB go back to 2004, long before I retired, and they fully support my claim. When I first submitted my CUE to the DAV VSO, he told me he thought we could get a decision in as little as 2 weeks. I have a number of emails where i requested a status, and he said I wouldn't hear anything until it was decided; I don't think he ever checked. After finding out the VA didn't have the CUE, I submitted it myself via eBenefits so I would have confirmation it was received. At first my new VSO said that wasn't the thing to do, but when he actually read the CUE, he said I did it correctly. I submitted it as a Motion for Revision. By the way, I am shopping for another VSO for the St. Pete VARO - any recommendations are greatly appreciated. I prefer to do the work myself but just need some guidance and a fresh eye every now and then. :-)

Broncovet That is what I am trying to tell you on the CUE stuff - it is all stuff I claimed back in 2009 when I retired. I was service connected for the conditions, and in one case I didn't get the special monthly compensation I should have and in the other I was rated word-for-word incorrectly. I first filed in 2009 for my retirement. I was dumb and happy when I got my overall 60% until last year when the VA decided to do a re-eval on two of my conditions. I decided I better get smart on my VA disability and I got through the C&P without a reduction. So I started going through my old records and looking through everything I claimed and found mistakes. In 2009, I claimed endometrial ablation and was service connected for it at 0%, but the VA did not give me Special Monthly Compensation for loss of use of a creative organ. That is a CUE. You do not have to request SMC, it is supposed to be given to you automatically if you have a condition that warrants SMC. The VA defined endometrial ablation as a form a sterility in 1998. I learned on this website that I can CUE SMC from a post done by Berta - thank you very much. In 2009, I claimed a skin condition and was SC at 0%. My 2009 Explanation of Benefits was word-for-word for an eczema-like condition while taking daily systemic medication which is 60%, but VA gave me 0%. That is the CUE that was lost by my VSO or the VA recently. The condition does not go away and my pharmacy records from 2004 to present support it. They might try, but there is no way the VA can give me the 60% rating that is due without not giving me the CUE on this one. I have not seen a single BVA appeal where the vet was denied 60% for my condition if it was service connected - and mine is already service connected.