Cue

[Tao]

Hi all!! Great site and nice people. I have been lurking for a while and doing a lot of research on a CUE that I think I have, maybe you guys can help me and give me your opinions.

Well it all started in 1999 when I got discharged for a left shoulder injury that left me with a dislocated shoulder. I was awarded 20% at that time for recurrent shoulder dislocation. Well in 2002 I was feeling some strange sensations on my left arm and immediatly went to my private Dr. Uppon examination he felt that my frequent dislocation were pulling on my Brachial plexus nerve and ordered a EMG & NCV test done. The results were what the Dr. expected and he Dx me with brachial plexus syndrome. So in late 2002 I went to my VARO and filed a claim for brachial plexus secondary to my shoulder dislocation. Maybe 2 month later I was scheduled for a C&P visit and I told the Dr. my symptoms and gave him a copy of my EMG results, a month later I receved a letter denying the brachial plexus syndrom. They based their decision saying that my condition was already awarded on the initial 20% that I got in 1999. I was dissapointed but left it like that( i was 26 years old and did not know anything about the VA and their tricks).

Recently Ive been getting informed and read lots of people giving advice to other veterans to request a copy of their C-Files and so I requested mine. Looking thru my file I came across the decision made in 1999 and all the progress notes talked only about the shoulder dislocation, nothing in regards to the neurological condition regardin the brachial plexus. So I immediatle took the C-File to my Dr. who has been treating me since day one. He studied the case and told me that he could not figure out were the VA links the brachial plexus to the shoulder dislocation back in 1999. He then proceeded to tell me that the VA was doing something wrong because the brachial plexus was a secondary condition to the shoulder dislocation and that none of the symptoms associated with a brachial plexus were not present at the time of the evaluation in 1999.

What do you guys think??

[Pete53]

Welcome to Hadit

[Hoppy]

If you can find the rating schedule for the dislocation condition and the nerve condition and the final rating they gave you should have been higher, then this could be the misapplication of rating codes Berta has talked about.

What it sounds like they are saying is that the dislocation problem might include a level of severity that is not increased by the nerve condition. You really need to dig into the rating schedule.

Edited May 7, 2009 by Hoppy

[Ricky]

TAO - I am not a doc but normally things such as dislocated shoulders are the result of injuries to the brachial plexus - therefore, it would reason that the rating officer determined from your medical evidence that you suffered from some type of brachial plexus injury which resulted in your constant state of shoulder dislocation.

Talk it over with your doc and see which comes first - and what is the cause of your dislocated shoulder - is it due to an injury to the brachial plexus (which nerve within the plexus) or is there other causes inwhich the should is actually causing damage to the plexus..

I would bet a dollar to a dime that the rater determined that the brachial plexus was the cause of your shoulder dislocation which is why they say the brachial plexus problem was included in the shoulder rating.

As hoppy said you gonna have to dig into this one if you persue it.

[Berta]

That is a CUE claim basis-

Did the doc wrote this all down for you ?

You need to get out the older decision- and see how they rated and what diagnostic codes they used.Also look over regulations for secondary conditions.If the broke the regs involving secondary conditions, that would be a CUE too.

As you already know- Duty to assist regs dont count as CUEs-they break those regs all the time.

This is where the legal error can be found-

but this could be a problem:

"none of the symptoms associated with a brachial plexus were not present at the time of the evaluation in 1999"

was the brachial plenus at a ratable disabling level at time of the 1999 decision?

If you search the terms of your disability at the BVA web site you could find more info as to how to approach this-

[broncovet]

Read the decision thoroughly. Dwell on it in your mind, applying things you have read here on hadit.

The CUE standard is much higher than that of a normal appeal (a timely filed NOD), so you have to find a regulatory violation, and it has to be probative.

Some things to consider..

Did you get the required VCAA notices?

Have you ordered a copy of your c file, and compared it to what you have..making sure no documents were shredded/misdated?

Did you look at your c&P exam request..that is, did they ask for nuerological complications?

As Hoppy said, read the schedule for rating disabilities..do not assume that the VA followed regulations in rating you, because often they dont, and just shoot from the hip.

Was evidence overlooked in the initial decision?

Has your doctor specifically stated the nexus statement, "Veterans brachial plexis is most likely due to

......... suffered while in military service"?

A qualified medical opinion can not be "trumped" by opinions of rating specialists, at least not upon appeal.

If you had symptoms/diagnosis of this related nuerological condition, and the VA failed to consider this evidence, then cite Roberson in your appeal, because the VA is required to give a sympathetic reading to all your evidence (as mandated by congress!). Roberson reads, in part:

"Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU."

It is my understanding that Veterans use Roberson to win other claims, not just TDIU.

Hope this helps.. remember the VA uses regulations to deny us, but we can use them also!

Edited May 7, 2009 by broncovet

[Tao]

Thanks guys i really appreciate the time you guys are giving to my situation. I'll be a little more specific.

Back in 1999 my Dx stright from the decision letter is: Residuals Left Shoulder Dislocation with Recurrence and internal derangement (minor) evaluated as 20% disabling. The Dx # is 5202 Humerus, other impairment of. My Dr. says this Dx only applies to a musculoskeletal condition and not a neurological condition. He also stated that since my shoulder "pops" off so frequently that in time it has damage the brachial nerve.

Back in 1999 I had no numbness, weakness, cramps etc... all this symptoms started around 2002.

He wrote a IMO and explained in full detail why he thinks the condition is secondary to the dislocation and that their was no medical evidence nor symptoms in my C-File from those dates (1999)that involved damage to the brachial plexus.

Hope this gives you a clear picture of my case.