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  1. Hello fellow Vets! I recognize it’s a lot to read... It’s my first time making a blog post and I want to be clear and get solid and knowledgable responses from y’all. Thanks in advance!! History... Filed a claim for VA disability benefits April 2013. Hand delivered over 200 documents in support of my claim to the Houston VA office in January 2014 (prior to a decision letter on my claim). Decision letter received in March 2014. Failed to achieve a rating above zero percent on any of the disabilities claimed and no service connection for Major Depressive Disorder(MDD). The documents I filed at the VA were date stamped Jan 8, 2014 and included the only records I had in support of this claim, especially for the MDD. Fast forward... Intent to File submitted in August 1, 2018 (at my attorneys direction). His office then submitted a supplemental (including 16 pages of the very same supporting documents that I submitted to the VA in 2014) on the 364th day. Well, that supplemental got me appointments with two different C&P professionals and resulted in a combined rating of 70% (10% knee and 70% MDD) effective July 30, 2019. The same VA documents filed by me in 2014 and (fewer) mailed with the supplemental were recently reviewed at my C&P exam by the psychologist conducting the interview. He asked for my help to show him any document in my file that made it clear and unmistakable that my MDD was/is service connected. It took all of thirty seconds to search his computer with my VA records on it to locate a document from my psychiatrist and head of psychiatry at my last duty station. These are the very same documents which were in the VA’s possession prior to my initial claim attempted in 2013/2014. Meaning there is NO new or compelling evidence! Question 1 - So why did they schedule (allow) these appointments and the case to be reopened with no new and/or relevant evidence? Question 2 - Why was it right (or was it) for my attorney to file a supplemental (vs. just filing for a new claim)? At least with a new claim I may have been able to receive (the 11 or so months of) backpay from the Intent to File date. It seems the supplemental has NO benefit over just requesting to open a new claim. Or is it not allowed for veterans to file a new claim for any previously claimed ailment(s)? Question 3 - Is it a fact that the VA made a clear and unmistakable error with regard to no service connection for MDD? ... by not reviewing those documents which were right in front of them? And if the documents prove the date they were filed, isn’t it undeniable? And if I am now rated at 70%.... Question 4 - Shouldn’t this be one of those CUE cases that should/could be potentially won for backpay to April 2013? This is the first time they scheduled me for ANY C&P appointments for any reason ever. Yet, this is at least the third attempt at filing a VA disability claim. Question 5 - What makes the VA decide for or against these C&P exam appointments?
  2. So, as some know I have been having a little war with the VA and my VSO, the American Legion, about getting my DBQ's. So today I went to the VSO's office in the VARO building during their "walk in" hours since I could not get them to give me an appointment. On the door was as sign saying the office was closed for the week for training and left the 800 number for Washington DC office. I knock on the door anyway. Two ladies answer. Tell them what I want and that I need them to do it today. They invite me into the office. I hand them a typed sheet with the Dates and Dr's of my C&P's and a list of documents for each one that I need. The first lady says she doesn't know why I am there. The second lady says she will help me. The first lady says show me how we do this. Okay I tell them again what I want and the 2nd lady says why do you want to file a NOD, I tell her. She says you don't need these files to file an appeal.......The VA already has them. I tell her I need to know exactly what the DBQ says and what the letters to and from VA says. I also need the code sheets as they existed at each point for each approved and denied C&P. She tells me no i don't and if I insist on filing a NOD I should just file an HLR.. I told her no, that would not work for this and the HLR results are not typically veteran friendly. She then spends 20 minutes more telling me that I need to listen to her because veterans don't know what they want and don't know anything about the VA and how to win their claim. She then says "We work for the VA not for you, and the VA knows what it is doing". this of course makes me mad and I say to her " I am asking you to get me these files. nothing more. I have heard your opinion and all you need to do is get me copies of these files." She then starts in again trying to convince me not to file. I get more insistent and tell her that i heard her but I expect her to do exactly as I requested, nothing more. She then says "Well you don't need those files so let me file the NOD" I tell her NO. Resoundingly empathically NO> She then tells me I know how to file a NOD. She then remembers I am filing a CUE and says "you shouldn't file a CUE because you will never win and then the VA will be mad at you"...... Just f'ing wow. Then I tell her once again to do what I asked her to do and to stop trying to dissuade me from what I want. I tell her she is wasting her time and mine and that all I want is her to get those documents. She then yells to the other woman to get "Bill". Man comes in and says "those are VA files you don't get to have them". I tell him he is wrong and ask who he is. He refuses to answer. I look at woman 2 and say Please tell me your full name so I have a record. She wants to know why. I tell her point blank, that the next time I speak to AL in DC I am going to reference her and what she has said and not done. I then look at "Bill" and ask his name. He tells me 'you don't need to know that". I tell him I do because saying "Bill from AL means nothing to anyone". He snaps back 'I don't work for AL I work for VFW". I ask him why he is sticking his nose into an AL situation? He gets mad and leaves. She writes down her name, at least I think it is her name, date and time . Then says all she is going to do is fill out a FOIA. At this point I decide to let her do that and get a copy to submit with my complaint to the AL. She then asks me what I want. Types that I want my C-file and the files on the attached sheet, prints it, shoves it at me and says to Sign it. I tell her no it is not accurate and ask for a pen and write explicitly what I want. She literally tries to argue with me. I tell her to stop arguing and write the FOIA the way I tell her. She writes it wrong in her own phrasing and i made her redo it. Then I made her add Time is of the essence on the form. When she handed it to me. I initialed before and after the typing and drew a line threw the blank space. She gasped and asked why I did that. I said "its blank space and anyone could add words to that blank space. She then started to say, and got half way through saying 'I needed to put more stuff...." and then shut up as she realized she was admitting to falsifying a FOIA over my signature. I am not sure which is worse, having the people with my POA try and screw me over or having the VA which is supposed to be on my side try and Screw me over.
  3. Note: My claim(s) are under Legacy Appeals I received a Rating Decision where the VA acknowledges CUE, though I didn't claim CUE, but the decision admits CUE... I did write in my NOD supporting statement, "NYCRO committed unmistakable egregious errors when they closed my 2016 claims," but nothing about claiming 'Clear and Unmistakable Error(s)'. So then, I'm feeling like this CUE claim by the VA is some...thing they've done to put a halt on that component of my claim...which is retroactive for TDIU... In my SOC appeal I took the route of "I dunno" lay person filing appeal and posed the question under footnote noting something along the lines that 38CFR doesn't say (or least I couldn't find anything) about a CUE itself being a CUE... Questions, 1. I didn't claim CUE but the VA did, how do I respond accordingly? 2. Are they trying to put the kabash/narrow my options for their not processing TDIU retroactive?
  4. I was all set to use the 21-0958 for for my NOD when I happened to notice the decision I am disagreeing with said to use 21-0995. I looked up 21-0995 and it said it's the "new and improved" faster response form. If there is such a thing as a "faster response" form, I'd like to use it. The 20-0995 makes it sound as if it can be used for both CUE and NOD. I need to submit multiple of both and I don't want to screw it up. Have any of you use this form? thanks
  5. Good news, I filed three CUEs and now have three C&P exams. Great news, it's with the VES and not the VA. The best news, I've seen one of these VES Doctors before and he rated the disability exactly correct! My question is, since I was given the C&Ps for the three disabilities that I filed the CUEs against, does this mean that the VA is agreeing that they made a CUE? I understand the exams still have to happen for the rating portion, but does this mean the bureaucratic part of the VA agrees there was a mistake? Logic tells me "yes, why would they schedule an exam if they were just going to deny the CUE." However, this is the VA and logic is hard for them. Last night I was going through my records to get them ready for the C&Ps. While I was doing this, I found another CUE that if accepted will net me another 10% back to 2005. Go through your records, DBQs, and Rating Decision letters, you might have CUEs just waiting to be found! Thank you, Stephens
  6. Hello everyone, I have been chewing on this one for quite a while and believe this final draft CUE is ready to be submitted to the VA. The decision maker failed to follow the laws in effect at the time. No judgement call factors. Please feel free to tear it apart and offer any suggestions. I wanted to keep it down to about two pages, explain the error, include excerpts from evidence, and include laws in effect at the time.
  7. Hello Everyone, I wanted to put a situation out to you all and get your feedback as it would relate to a potential presumption of soundess cue claim. Back story: 1983 - In high school I tried out for varsity football (note I am 5'5" and 135lbs at that time) so I could have some level of social life. First day of practice a kid ran into my left side and hurt my knee. I DID NOT seek medical attention, never went to the doctor and was fine the next day (though I did decide not to try out for football any longer). Fast Forward: 1985 - I joined the Army National Guard and NO MEDICAL ISSUES were noted on my entrance exam. I transitioned from ARNG to RA in 1987 and did not have anything listed on the exam for that either. I was Airborne and have STR entries for strained MCL, Achilles and Twisted knee. 1991 - I got out of the service with a lumbosacral strain issue with 20% disability at that time. 1996 - I had meniscal surgery on left knee 1997 - I had surgery on my right knee was going to physical therapy. During the review the physical therapist did to get medical history they asked me about injury history and so I told them the only issue I ever had was the issue in high school which was really a non issue but I was being honest and the meniscus surgery the prior year. They incorrectly annotated on my record that the high school knee injury was "torn meniscus" by combining my two statements into their notes to read high school knee injury (torn meniscus). 1999 - I filed a claim for bilateral knee issues and was denied because the rater read that note and said that I had a pre-existing condition. There is no medical evidence of my high school knee issue because I never went to the doctor and the next day it was fine. I was finally able to get a rater who service connected and rated for both knees and ankles and nexus was established for marching/jumping in service. I didn't know exactly why I was originally denied but after getting my c-file I figured out that it was all because of a physical therapist not taking proper notes. My question is that I don't think they properly applied the presumption of soundness rule in my case because the rater had no direct medical evidence to prove that I had a pre-existing condition and the entrance exam(s) were negative for any medical conditions. I'd like to get your thoughts.
  8. I just got a phone call from my VSO who said my RAMP decision letter will be mailed out today. I won an earlier effective date (CUE claim) for my skin condition! I was denied on the PN earlier effective date which I knew was a long shot. My skin condition was rated at 0 in May 2009 and I had an overall rating of 60. In Jun 2017, I was finally increased to 60 for my skin condition. If I had been rated correctly for my skin condition in 2009, my overall rating would have been 80. So the back pay will be the difference between 60 and 80 percent from May 2009 to June 2017 -- not bad. I can't wipe the silly grin off my face. You can see my other posts in the CUE Forum.
  9. I will ask the first question in this new forum. I have just been granted a 30% rating for Vertigo from a 2018 claim. If this were a "normal" first claim I would fall under the AMA and have to NOD using one of these three lanes. My confusion comes from the following. In my original award fro 2013, the VA knew about the vertigo. They had sent me for a VNG (waterboarding through the ear) and an MRI for vertigo. I had two C&P's, one for PTSD and one for Hearing Loss. Both knew about the vertigo and tests. The award letter from 2013 did not mention vertigo or the tests even though they were in my file (or at least the ordering of the tests and notes that said the results were being uploaded). Since it did not mention them, and I did not know they were compensable, I did not NOD the decision at that time. I also did not know what a NOD was so that makes things worse. I was denied SC for Hearing Loss in 2013. I did not know that they reason they denied was that they only looked at 1 enlistment instead of both which covered 10 years and were consecutive. I only found out the reason they denied in Aug 2018 and filed to reopen based on New and Material evidence even though I did use that exact term. They denied reopening the hearing claim for SC based on the old C&P form 2013 and did not offer a specific C&P for SC connection. In that same Aug 2018 claim I filed for "dizziness" which is what I have always called my episodes of vertigo. They sent me for a C&P. The doctor was incompetent and did not even have a DBQ in front of him and no computer in the office. He stated his wife does all his computer work at home. He stated he did not know why I was there or what the VA was expecting. I told him about the vertigo (I had learned that was the correct term). Further he looked up my nose, in my ears, then said the problem was between my ears meaning a problem he could not see. He did not ask about my gait, frequency of events or if I had nystagmus (I do and it is documented). The C&P for Vertigo did include a hearing test. I pointed out to Audiologis, and showed the records, that the 2013 C&P was wrong on SC. She stated she was not doing a C&P just an hearing test but would include a note on the SC and dates. The VA bounced this around for months, even reaching pending final verification with a Due date of 1/8/2019. They then bounced back to gathering evidence and ordered a C&P on Hearing Loss, ostensibly for the Vertigo claim. The results were finalized about 20 days ago and Ebenefits disabilities were updated to show Vertigo at 30% and Hearing Loss as SC. The BBE has not yet arrived so I don't yet know their reasoning. So my questions are: Do I NOD the 2018 Vertigo decision using the AMA and which lane? Do I NOD the 2013 award or CUE it? They VA failed to even mention the tests in that award. The did not notify me that a claim was possible and they did not offer me an assist in getting the C&P. They now claim they have lost the records Do I Nod the 2013 hearing denial for SC and request EDD? or Do I NOD the 2018 hearing decision asking for EED to 2013? Do I CUE this to get my EED? The doctor clearly did not look at my full record and even states it so. The VA did not notify me of that fact in the Award letter, which significantly changes any NOD choice I could have made back then. As I am still waiting on the 2018 Vertigo claim and Hearing SC connection I cannot post them. I will gather all the award letters and redact them once that shows up. Any help? suggestions?
  10. I was admin separated from the Corps because of bilateral petal femoral pain syndrome. I filed a claim with in one year of my discharge. The VA sat on it for almost a decade, until I submitted another claim, asked about the first one and filed for the exact same issues as the old claim. The only mention of this claim has been in my awards/denial letter. In the awards sections I was told that my effective date was the date of my discharge due to an unadjudicated claim that I submitted with in one year of my discharge. My question about the CUE is that if they are working with that unadjudicated claim that was submitted with in one year of my discharge, isn't everything that I claimed supposed to be presumed to be service connected? I was active for 2.5 years and honorable discharged, I meet all of the in service requirements that I know of. So what do you think, do I have a CUE since they never adjudicated the claim that was within one year of my discharge? The only thing that I think is going to hurt me is that the unadjudicated claim still isn't in my ebenefits site or c-file, so they might say that my claim date was the date I filed the new claim. Which is funny because they mention the old claim as the reason for my effective date being my discharge date. I still have the old claim and reference number they gave me. I'm at 80%. I count this as a win, but I still want to push forward. It's been a long fight and I'm not ready to give up. The items I was denied for should bump me to 90%. Thank you for your help, Stephens EDIT: Can someone move this to the CUE section? Sorry, I didn't realize I was posting in the wrong section.
  11. The VA is rating a previously awarded claim for 80% that got caught for late flowing evidence and are now in the process of re-rating all contentions in the awarded claim under EP 930. They are now stating that the rater that awarded me 30% for an eye problem for detached retina complications in the first claim made a mistake by using the diagnostic code for aphakia to give me 30%. Is this a VA CUE or just judgement by the rater that should stand as rated?
  12. Got an unofficial notification from the DAV about my DRO appeal stating that they were giving me an earlier date for my tinnitus (that baffled me) and that they were granting me 40% for my back (degenerative arthritis). My appeal was for secondary service connection for my knees, there was nothing about my knees in the "unofficial notification". So I went to the closest regional off and was finally seen. They looked up the "official" notification (SOC) from the VA and it stated nothing about my back but stated that they had denied me my secondary claim on my knees stating that the Dr couldn't find anything to connect my claim to either my back or the service (um, always thought knees went when back went, so secondary was almost a given, then again he did specialize in cardiology). In someways I am not that surprised, but I am wondering about the "unofficial" notice both the "unofficial" and "official" where dated the same (July 5th) I cannot believe in a matter of a few moments the VA totally changed their decision. So that has got me flummoxed. What makes this unique is that if the 40% for my back was based on the one medical entry that they didn't use for my initial claim back in 95/96. I was never able to get anybody to write me a nexus letter for this so I could "officially" reopen the case. If the "unofficial" letter holds true and I am just waiting on other paperwork to be finalized then they have all but argued CUE and handed me a win without even trying (I know the VA will never give up that easily). The entry stated scoliosis and that it was a recurring issue, their determination was based on an earlier entry and stated in black and white they could not find any other entries. Can you say "gotchya"? Getting a letter now for my knees should be easier since I have some indication that the VA does ("did") give some indication that they felt that my evidence did indicate connection to the service concerning my back. Can anyone possibly clue me into what might be going on? Did the DAV totally get it wrong? Or, is this just part of the whole overall process and I am only seeing part of it?
  13. 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
  14. Okay, so I got the CDROM with my C-file this week, and I already knew that there were problems with my C&P for bilateral hearing loss conducted in 2013 but needed the C-file to do anything. I found out about the error in 2017 when a paper copy of my c-file showed up out of nowhere after more than a dozen statements from the VA, St.Louis Rec Mgmt, and the Navy saying no one could find my records. When the C&P happened I was never mailed a letter with the results and that justifications. I did receive my rating later for 70% PTSD 10 % Tinnitus as being SC. My American Legion rep said the bilateral hearing loss claim was denied. I took his word for it and went on about my business. The paper copy of the c-file arrived and besides a cursory look I did not dig much into it. One day I did some more looking and found the C&P and it clearly stated that the examining Doctor only looked at the hearing tests for my induction and end of my FIRST enlistment. She completely ignored my second enlistment and even called the second enlistment a separation instead of a reenlistment. I did not deal with it at that time because I was doing a hundred things and then I moved up to Seattle and put that box in storage back in New Orleans while I decide if I can last the winters here. I have found several distinct problems w/ my c-file and her determination reasoning and what I want to find out is if these readings mean anything but more importantly if this is properly submitted as a CUE? The lack of service connection for the left ear will make getting hearing aids a problem later in life and frankly I say 'huh' a lot as it is. 1) she only looked at one enlistment 2) she stated that "...an OSHA-defined STS during military service CANNOT be established from this audiometric data." Yet in the file is that very document but from my second enlistment period. 3) Including the C&P there are 6 hearing tests in the file. There should be at least 4 more, as my job required an OSHA hearing test every two years, these are mandated tests and do not substitute for reenlistment and discharge hearing tests. 4) The one OSHA test in my c-file is marked in writing as "an OSHA-defined STS during military service CANNOT be established from this audiometric data." This file says it occurred 3 days after another OSHA test which shows a 20 DB loss in my left ear at reenlistment but none of the intervening tests are in the file. This one "reset the baseline" to 0 for the 4000Hz frequency. I Don't understand this and do not remember ever taking back to back hearing tests or being told to sit in a quiet place for 3 days before being retested. 5) The final in-service test is off the charts compared to my other tests. I have 70's and 75's in my right ear and 30's in my left. My AVG for the right ear is a 37.5HL. 6) the C&P says there is loss but not enough to be rateable. which is fine but it also says the loss is not service connected. which is flat out wrong. 7) For the right ear she lists an IDC 9 code of 389.11 which is for BILATERAL Hearing Loss, but says there is no loss in the Left ear. sorry about the huge table, but it shows the readings for every test in my c-file. The one in blue is the OSHA baseline reset test and the numbers in red are the noted 20 db difference the triggered the supposed reset of the baseline. any CUE help would be appreciated. I think it is one but I am not sure. Induction 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 10 5 20 0 0 5 na (30/5) = 6 left na 15 10 0 0 5 15 na (30/5) = 6 Re-up 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 30 10 5 5 5 10 na (35/6) = 5.8 left na 15 10 5 0 20 5 na (40/6) = 6.66 osha 87 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 Right na 10 5 0 0 10 -5 na (15/6) = 2.5 Left na 5 5 5 5 0 5 na (20/6) = 3.33 osha 87 3 days later 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 10 5 10 -5 0 5 na (15/6) = 2.5 left na 15 5 5 5 0 10 na (25/6) = 4.16 Discharge 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 Right na 5 70 30 25 20 75 na (225/6) = 37.5 left na 10 5 10 5 0 30 na (57/6) = 9.5 C&P 250 500 1000 2000 3000 4000 6000 8000 Avg listed in C&P right na 30 20 15 15 40 25 20 22 left na 20 10 15 15 15 20 10 14
  15. Okay so my C-file arrived, and did so amazingly fast. Less than two months, not bad time. Going through all the files and sorting them but one of the first things I need to get together is the claim on OSA. I know the rules have changed about OSA ratings and now the med file must have a doctors saying specifically OSA is a medical condition From the MR21-1MR “When determining whether the 50-percent criteria are met, the key consideration is whether use of a qualifying breathing assistance device is required by the severity of the sleep apnea.” “Use absent a medical determination that the device is necessary does not qualify. The regulation requires that the device be necessary and this is a medical question.” So here is my situation. On 07/07/2013 I had my initial PTSD C&P which noted serious sleep problems, chronic fatigue, hypersomulance but it did NOT mention the SLEEP STUDY diagnosis given on 4/13/13 At that time the simple issuance of a CPAP was considered sufficient to getting a 50% rating for OSA, but as the change listed above notes that is not the case now. I have already filed a claim for OSA secondary to my PTSD. I did this before my Review C&P for PTSD exam, which resulted in getting bumped to 100% PTSD P&T. With the change in MR21, I suspect they may disapprove the OSA claim. If they do, would my path be to file a CUE because the record showed the apnea existed and a cpap was issued when they rated me for PTSD. The retro pay would be awesome! That would seem to be an error on their part and under the old standard I would have gotten a 50% rating for OSA as well as my 70% for PTSD and 10% for Tinnitus. The 70+50+10 calculation is 87 which rounds up to 90 for pay purposes and getting that retro 20% difference for 60+ months would be a nice holiday or new years present to me In the alternative, would I submit a NOD with the same information? or would I have to get a DOC to say that the CPA was medically necessary and would that mean I needed another Sleep Study? Thanks in advance. I am just trying to get things ready for whenever they make a determination on the existing claim.
  16. Hi all, As i said in another post I am new here and looking for guidance, opinion, options that may be available to me. Without all the gory and boring details, I am currently rated SC 70% PTSD, 10% Tinnitus with a statement that my bilateral hearing loss is not service connected. This all comes from the same original claim in 2012. I found out last year, 2017, that in making the bilateral determination the doctor only looked at my second enlistment and did not review any records from my first enlistment. I found this out when going through my records which took years for the VA to "Find". In the records are audiology test records from the first enlistment which show the damage occurred in service. In my first enlistment I had 3 audiograms. 1 to enlist, 1 diagnosing problem, 1 to re-enlist. in my second enlistment I had exactly 1 audiogram which was when I completed my enlistment. In the record from the first enlistment is a piece of paper that says "rehabilitation plan complete." but no other information. When I took the 2nd test they told me to wear earplugs when i could. That was it. In the test results between enlistment and the 2nd test it shows the loss in both ears. The final test on discharge says hearing is the same as at re-enlistment which was after the damage. So here is my question on this: What are my options to challenge this decision? I did not discover that they did not look at both enlistments until last year, which is 5 years after they granted me my initial 70 & 10 percent ratings. Is there an option? Do i start it all over again? would I need to get a lawyer? any suggestions would be great Thanks
  17. Hi, I am new to this forum but from what I read here I am very gratful it exists. So 6 months before I ETSed I submitted my 1st VA claim from the suggestion of my sergeant major. When I initiate the claim I was getting reoccuring calluses on both of my feet. The VA wrote down calluses as the actual symptom and they give me 0%. This was in 1998. Technically I have one medical record from February in 1998 stating I had pain and calluses on both feet and the actual c&p exam was done in July of 1998 Later in 1999 after further x-rays and tests at the VA they realize that I actually had pes plantus on both feet. Unfortunately for me I didn't submit that claim until 2012 when I understood how the VA system work. They granted me 30% for the pes plantus and they backed you to the effective date to 1998 because they changed the diagnostic code from calluses to pes plantus for that injury. They never changed the percentage rating and that's what I am posing in the CUE claim. My concern is, the Doctor who evaluated me at the C&P did a bunch of tests on my shoulder and my neck where he found a C5 C6 degenerative disc and a nerve impingement. At the same time for the calluses all he did was basically state that I told him that I would shave them off periodically and never did any testing or any further investigation. He didn't do anything to address the underlying cause and there's no way of identifying how bad my calluses were between the time of 1998 and 1999. Is this a good grounds for submitting a cue case? Basically I feel they could have asked for another C&P exam as there was no vasrd code for calluses at the time according to the decision and also they evaluated me on the incorrect code. They changed it which shows they agree pes plantus was the underlying cause and calluses was just a symptom.
  18. Check this out, folks. You need to get your claims files and examine them very closely. https://asknod.org/2018/08/19/cue-get-the-fugo-out-of-here/
  19. ok so ,,,, if you read back on some of my posts you will see the issues i was having with the va, long short.. i was : 20bilat 20bilat 20bilat 20bilat and 40 = 76.4 PAYS 80 NOW IM, 40 bilat 20bilat 20bilat 20bilat and 40. = 83.4 PAYS 80
  20. Hello everyone, I'm looking for feedback based on CUE when the VA fails to consider VA medical records. I have explored this previously, both publicly and privately with Hadit members, but am close to finalizing my draft. I begin by stating the statutory and regulatory provisions extant at the time the decision was made, facts of my situation, and then close by showing how CUE is justified. Feedback and guidance is greatly appreciated! Draft Clear and Unmistakable Error (CUE) occurred in my initial Rating Decision (February 2, 2000) for internal derangement of the right temporomandibular joint, which awarded a 10% rating based on a second C&P exam (December 17, 1997). The VA had constructive possession of, but "misplaced", and failed to consider an initial C&P exam (November 21, 1997) which warranted a higher 30% rating. Statutory and regulatory provisions extant at the time the decision was made §4.6 Evaluation of evidence M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4) VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records DeLuca v. Brown, 8 Vet. App. 202 (December 22, 1995) (discussing 38 C.F.R. §§ 4.40, 4.45) Review of the facts Initial C&P Exam (November 21, 1997) by Dr. X, DMD The examiner noted: 1. Maximum ROM was 35 mm. 2. "Mandible locks midway and pt has to push downwards with his fingers to reach max". 3. "The pt is able to reduce the dislocation on his own without much effort or pain". 4. "All movements elicit pain". Merriam-Webster's dictionary defines "midway" as "in the middle of the way or distance; halfway". Half of the maximum 35 mm ROM distance is 17.5 mm, per DeLuca v. Brown. Per 38 C.F.R. 4.150, Diagnostic Code 9905 (1999), "Limited range of motion of temporomandibular articulation is assigned a 30 percent evaluation for inter-incisal range limited to 11 to 20 millimeters". Second C&P Exam (December 17, 1997) by Dr. X, DMD The examiner noted: 1. “Date of examination was approximately one month ago. However, that material has been misplaced and the service member returned on this date, 12/17/97, for re-exam.” 2. "The patient opens to 29 mm., experiences a loud click, and then can open to 42 mm". 3. "He responds to pain and discomfort on opening beyond 29 mm”. Rating decision dated February 1, 2000 The VA Regional Office employee noted: 1. "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint". This quote is echoed in part from 38 C.F.R. §4.59 (1999) Painful motion. The decision resulted in a 10% rating, the minimum compensable rating for the joint." 2. References the December 17, 1997 exam. CUE Justification - The initial exam (November 21, 1997) exam warranted a 30% rating, per DeLuca v. Brown. - The second exam (December 17, 1997) noted Dr. X conceding the material from the initial exam (November 21, 1997) was "misplaced". - The Rating Decision (February 1, 2000) mentions the second exam (December 17, 1997), but never mentions the initial exam (November 21, 1997). - The VA had constructive receipt of both exams authored by Dr. X, a VA employee. - Both exams are present in my claim file. - Both exams were a part of the record at the time the decision was made. - Per §4.6, "Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." - Per M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4), "A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim." - Per Bell v Derwinski, 2 Vet. App. 611 (1992), "...medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision." - Therefore, given the above facts, had the VA considered the initial exam (November 21, 1997), it would have manifestly changed the outcome to a 30% rating vs 10% and the second exam (December 17, 1997), which is detrimental to the correct rating percentage, would not have been performed or considered. End of draft Thanks, -Vync
  21. Would it be a CUE if the RO failed to render a decision on a claim or defer a contention in its decision? They rendered a decision on all other contentions but failed to address one. Thank you!
  22. Can I site law in a letter submitted as evidence? The veteran was diagnosed with PTSD in prior C&P exams, the diagnosis has been carried forward by treatment providers, and by his report continues with sufficient symptoms for the diagnosis. Thus the diagnosis of PTSD continues, as likely as not due to events in military service. Antisocial personality disorder was present well before military service, so it is less likely as not caused by military events, and there is no evidence that this disorder was exaggerated by military events. Also, alcohol and illicit drug use clearly was present prior to enrollment in military, so it is less likely as not caused by military service. There is no evidence that the veteran's substance use was due to events in military service nor has it progressed beyond the normal course for this disorder. Put another way, even if the military event had not occurred it is likely that the resulting pattern of substance use would have been present. Moreover, while there is some equivalence in the literature about the direction of causality when both mental disorder and substance use are present, DSM 5 does not acknowledge any substance use disorder as "due to mental illness," yet there are numerous "substance-induced" mental disorders. LAW: pay attention to examples not to use....and c an p doc uses likely, less likely as not....
  23. If a c and p examiner checked the box stating it was an in-person exam, and it was not. Is this good enough for appeal for remand or reversal?
  24. Hi All, I appreciate any tips or advice on how to win my claim! Here is a basic overview: 1. Got denied for Lumbar condition even though I clearly have it documented from '05 until my retirement in '12 with diagnosis of Lumbar strain and chronic pain shown. I literally have two medical records that give a summary of my history of pain going back for 4 years since the initial ER visit in '05, with no prior history of back issues. 2. VA claim decision states in part "the evidence does not show a chronic disability during service nor after active duty, therefore service connection is denied....although there is a record of treatment for thoracolumbar spine condition, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service..." 3. NOD is due by August 15, 2018 - does anyone believe that I can get that overturned at the Regional level? I have a doctor about to write a nexus opinion and with a current MRI diagnosis of DDD (stenosis and bulging disc, radial tear, foraminal narrowing) of Lumbar region, taking inflammatory meds for pain and valiums for spasms, seeing Physical Therapy recently as well. Regards!
  25. Are Missed Lab Reports/Diagnostics New and Material Evidence? Really wanted to thank everyone for their help in advising me. Since the last time I`ve posted I have went from 20% (for 30 years) to 80 %. My original claim for kidney disease was denied, with the help of a VSO, and is with the DRO to date. I decided no one would have the time to look at the 6000 plus pages and filed my other claims pro se. Following the guidance in this forum I was service connected for migraines (50%) tinnitus (10%), and left ventricular hypertrophy (30%) in addition to my original service connected HBP (20%). I really appreciate your help. I ordered my c-file and looked through all five-thousand pages and found that in 1981 and again in 1983 I had filed claims for hypertensive vascular disease (hypertension and enlarged heart disease). In the VA doctors evaluation of my claim, he mentioned there was no evidence of an enlarged heart.In the diagnostic ekg and chest xray reports, for 1981 and 1983, they both reported enlarged heart diagnoses. Could these reports be considered as new and material evidence because the doctor in making his decision didn’t take into consideration the material fact of conclusive evidence? Va just rated me with and enlarged this year (left ventricular hypertrophy) and gave me a 30% rating. Question: could this constitute an claim for an earlier effect date, a CUE perhaps? Not sure how to look at this revelation. Thank in advance for any replies. Cedric
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