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Carmand47

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About Carmand47

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  • Military Rank
    army veteran

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  • Service Connected Disability
    70iu
  • Branch of Service
    army

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  1. My issue is how to get VA to look at a 18yr old claim. My original claim. I see that they didn’t use all the supporting evidence on rating for Anterior disc fusion. If they had used all the material evidence provided then they wouldn’t have given me 20%. In 1999 title 38 explains that limitation of motion of the cervical spine and a demonstratable deformity from fracture warrants a 30% rating. Problem is the wording. Deformity is never mentioned in any of my exams however my radiological consultation request and report dated September 94 (while I was active duty) reads... examination of the cervical spine in two views: no demonstratable recent traumatic pathologies and cervical spine except straightening of the cervical Spine due to muscular spasms. Fused vertebrae or seen at Levels  C5-C6 which may be due to the result from an old trauma. (I broke my neck when I was in the army) Another diagnostic radiology report dated May 2002 and conducted at VA Medical Center, Louisville, KY states The examination of the cervical spine is compared to a study done in March 2001 the fusion at C-5 has not changed appearance since that time. The alignment still shows rather marked straightening of the normal lordotic curvature. Making note that they refer to my compensation and pension exam for my disability in March 2001 that Diagnostic radiology report says there is normal alignment there is evidence for anterior fusion of C5 and C6 vertebrae bodies. There are mild to moderate degenerative changes involving the C4 and five and see six and seven levels joint space narrowing is seen no acute fracture or subluxation. But the radiologist in May 2002 used March 2001 to compare the changes and he said there were no changes and that the fusion at C-5 C6 has not changed appearance since that time.The alignment still shows rather Mart straightening of the normal adult curvature he said it still shows when in 2001 they didn’t even mention it. I’m going to move forward to February 2004. I got approved for an increase but...There wasn’t an increase on my cervical spine anterior fusion. I say again deformity is not mentioned anywhere in my records but I looked up straightening of the lordotic curve in the cervical spine and loss of lordotic curvature of the spine it’s defined as lordosis. I looked up deformity it lists scoliosis lordosis and a couple others. Just because deformity is not used in Any other diagnostic radiological reports or consults but that doesn’t mean it isn’t a deformity. It just means they did not list it for whatever the reasoning was. In August 2003 I was referred out from VA to aneurosurgeon the Neurosurgeon’s letter ofinterpretation of the radiology report stated there is a mild scoliosis of the cervical spine complevexity to the right. There is loss of cervical lordotic curvature was also an independent review of systems he noted MRI scan of the cervical spine reveals presence of loss of the cervical lordotic curve with cervical Degenerative disc disease. he specifically said scoliosis most people know scoliosis is a deformity but he also said loss of the cervical lordotic curve which is lordosis. Both of Those are deformities yet they never used it to give me theproper rating in 2001 or in 2004 I would appreciate any help that you guys can give me on how to try to fix this

    1. Buck52

      Buck52

      Hello welcome to hadit,

      IF THEY FAILED TO USE EVIDENCE AT THE TIME THEY RATED YOU  BACK ON THAT DATE AND IT WAS NOT THE CORRECT RATING AND THIS EVIDENCE WILL RENDER YOU A BETTER RATING THEN YOU MAY HAVE TO FILE  A CUE CLAIM.

      I am not sure how to advise you to reopen your old claim  but other elder members may chime in  with more experience than I.

      I know you will more than likely need a good Veteran Friendly  Dr preferably a specialist to help you out to give his professional medical opinion.

    2. Berta

      Berta

      You had some relies here in May 2019- and I think it involves the exact same issue:

      https://community.hadit.com/topic/74632-how-to-write-an-effective-cue-letter/page/4/

      Was the past CUE you prepared in May 2019 denied?

      If so can you scan and attach the denial here? Cover your C file #, name etc prior to scanning it.

      I dont get into PM or email claims issues. Everything I know about CUE is in our main forum , and we have many others here who are up to speed on CUE claims.

       

       

    3. broncovet

      broncovet

      Rest assured the VA is going to fight you on 16 or 19 years retro.  (It sounds like you didnt appeal it back in 2001, 0r 2004.) 

      While I have not read EVERY single thing in this thread, my opinion is that you will "likely" need 3 things to win this. (NOT in this order):  

      1.  Probably an IMO or IME.  If there is unclarity on a cue, then tie goes to VA.  No BOD on CUE.  

      2.  You may also need an experienced lawyer who represents Veterans.

      3.  A complete copy of your cfile.  If we give an "opinion" on your opinion, our opinion can be no better than your opinion.  Thus if you want an opinion, say from an attorney, he would need to first view your medical file.  

            This is my general advice on virtually ALL large retros: get the cfile, get great representation, and be willing to pay for an IMO or IME if needed.  

  2. Berta you are a lifesaver I will be faxing them in the morning.
  3. What is the form you use to file a cue. I'm going to mail it in.
  4. I went into my regional ofc to turn in my cue. They gave me the run around. They said I have to re-open the claim. They said they used my neurosurgeons letter. I said if they did how'd did they come to the decision that they did. They said it was a simple type o. Based off of thats schedule at that time I know I qualified. I'm sure of it. I'm not sure what happened. It's discouraging.
  5. I went into my regional ofc to turn in my cue. They gave me the run around. They said I have to re-open the claim. They said they used my neurosurgeons letter. I said if they did how'd did they come to the decision that they did. They said it was a simple type o. Based off of thats schedule at that time I know I qualified. I'm sure of it. I'm not sure what happened. It's discouraging.
  6. Berta, they actually used Dc 5241 on the rating decision but if you noticed they didn't use it anywhere in the letter rated me under the old criteria So do you think I should make any reference to the law requiring them to use the old material why just leave that alone
  7. So did you ever have a bone graft done for your surgery and if so did it give you complications. VA svc-connected me but gave me 0% because the used the dc 7805 for scars I told them it was my illiac crest that hurts to move lifting my rgt thigh is very painful. I told them I never claim a scar but the donor site pain. I welcome any advice you could give. Cause Louisville Ky varo is no help at all.
  8. This is a claim of Clear and Unmistakable Error under auspices of, 38 USC, 5109a. VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had. I feel that the VARO violated my rights under: ₴ 4.6 Evaluation of Evidence. The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the consideration of the rating board in arriving at determination of the evaluation of disability. Every element in any way affecting the probate if value to be assigned to the evidence in each individual claim must be thoroughly can consciously studied by each member of the rating board in the light of this established policies of the Department of Veterans affairs to the end that decisions will be equitable and just is contemplated by the requirements of the law 38 CFR 4.6. The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above. If the proper rate increase percentage was applied on the decision letter dated 27Feb04 It would have increased my rating for my Status post discectomy and anterior Fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This critical error was detrimental to me because it negatively affected the amount of compensation I have received as a manifested negative outcome since the error was initially made. It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04. a letter dated 8/22/03 from my neurosurgeon at the time from the neurosurgical group of greater Louisville in southern Indiana Dr. David A Petruska, M.D., with my MRI results dated 8/20/03 Dr. Joy D. Foster, M.D. and Dr Peter A. Rothchild, M.D., from Open MRI LLC. Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time. Thank you both I'm going to finish the rest tommorow
  9. let me know if i need to make any changes. Thank you
  10. hello berta what do you think? This is a claim of Clear and Unmistakable Error under auspices of, 38 USC, 5109a. The VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had: It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04. Please see the enclosed supporting documents: a letter dated 8/22/03 from my neurosurgeon at the time from the neurosurgical group of greater Louisville in southern Indiana Dr. David A Petruska, M.D., with my MRI results dated 8/20/03 Dr. Joy D. Foster, M.D. and Dr Peter A. Rothchild, M.D., from Open MRI LLC. Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstrateable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time. I feel that the VARO violated my rights under: ₴ 4.6 Evaluation of Evidence. The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the consideration of the rating board in arriving at determination of the evaluation of disability. Every element in any way affecting the probate if value to be assigned to the evidence in each individual claim must be thoroughly can consciously studied by each member of the rating board in the light of this established policies of the Department of Veterans affairs to the end that decisions will be equitable and just is contemplated by the requirements of the law 38 CFR 4.6. The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above. If the proper rate increase percentage was applied on the decision letter dated 27Feb04 It would have increased my rating for my Status post discectomy and anterior Fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This critical error was detrimental to me because it negatively affected the amount of compensation I have received as a manifested negative outcome since the error was initially made.
  11. Berta i want to think you for your input you sure do know your stuff. I have had to deal with alot while i was in. and since ive been out this road hasnt been easy either but God has kept me and my family. I was a single mother of two at the time i left the service. it was a struggle pushing through injuries, pain and constantly battling the bureacracy of the va system not knowing the regulations or how to get approved. i just did the best i could. It took me to 2003 before i was awarded enough where my children could be added for benefits. then i was able to get my finances straighten out. then 2004 until they granted me permanent an total unemployability. I failed to look closely at my paperwork and thats not going to ever be the case anymore especially where va is concerned. Its great knowing that there are people like you and this forum community that can help. because i dont remember anything like this 20+yrs ago. Its a beautiful thing.
  12. berta thank you for your patience. no apology needed. Yes i do agree that all other decisions would have been proper. I was initially awarded 10% for service connection on neck but I disaagree and asked for a reevaluation that letter i can find anywhere. but as you can see they have it noted very well. i did have the decision ltr for the increase of 20% 22may01. they gave me the 20% back to the original effective of 20may99. now with the decision ltr for 27Feb04 they referenced the 10%instead of the 20% given in may. So this is why you think i should just use the 27feb04 ltr. i think because i filed the increase 30jan03 that eed is correct but the percentage is wrong.
  13. ₴ 4.6 Evaluation of evidence This is a CUE under auspices of CUE, 38 USC, 1509A. I have Enclosed copies of the following decisions: Decision letter dated 27Feb04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.” Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99. Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service. An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received. An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain. Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time. a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above. If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.27feb04 spt doc decision ltr.pdf
  14. ₴ 4.6 Evaluation of evidence This is a CUE under auspices of CUE, 38 USC, 1509A. I have Enclosed copies of the following decisions: Decision letter dated 27Feb04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.” Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99. Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service. An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received. An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain. Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time. a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above. If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.27feb04 spt doc decision ltr.pdf 22may01 spt doc decision ltr.pdf 3.pdf
  15. Oh no berta thats not it. I welcome your advice im running blind here. I really appreciate the time your taking to help me. I was also trying to figure out how to scan these copies of my decision letters. i might just have to screen capture on my phone then up load them to my computer so you can see them. I apologize im very new to the site. Please bare with me.
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