Cue Question About Denied Claim

[smilen66]

Good Evening Everyone,

Many of you may know my claim was denied last week. I've settled down some and was finally able to read the entire claim decision today.

In Section 3, sc was denied for degenerative joint disease for thoraculmbar because my service treatment records show only 1 complaint of low back pain (Oct. 20, 1982).

My tour of Duty was 9-22-80 through 9-23-84

Entries in my treatment record:

• 11-6-1980 back pain
  
  
• 12-3-1980 Thoracic Back Pain (Taken by Ambulance to Emergency Room)Note made by Dr.: Injury 3 weeks ago with persistent pain.
  
• 1-16-1981 Right Lower-Mid Thoracic Pain
  
• 10-20-1982 Pain in Mid Section of Spine
  
• 7-8-1983 Back Pain Inferior border of Right Scapula
  
• 3-7-84 Right Thoracic back pain
  

My question is wouldn't the above be considered a mistake made by the rater, if there are other treatment days in my service treatment record?

Thanks for responding!

[samiam1978]

Hello Smilen66,

Sorry to hear of your denial. Is this the first decision made on your claim? I do know for a fact that as we all get older the chances of degenerative bone disease is more common. But, if your claim is for degenerative bone disease in the lower back then all the treatment you received for the Thoracic area would not be the same. The lower is the Lumbar area and if that is where your pain is then the Veteran Affairs can say that that was the only doctor visit where low back pain was mentioned. Now, the CUE. That is something I have one my claim when I had the DRO decision made and my evidence was listed as a Notice of Disagreement instead in the Evidence Used. I was told that these claim of CUE will be taken up at the Hearing you have before your BVA Appeal (Form 9). Any one word in your medical records can change a whole claim. It has to be just like your claim for compensation. Go back and look at other parts of your records where you may have had a physical for transfer, or for hazardous duty and see if there is anything mentioned about pain in the lumbar or lower back.

Good Luck.

[john999]

Remember that a CUE is done on a final decision. If you have the ability to appeal a denial that is much easier than trying to prove a CUE. An example is a claim you filed ten years ago that was denied and never appealed. You look at your C-file one day and you discover some gross error the VA made that would change the outcome of your claim. That might be a CUE. The CUE is the last resort.

[carlie]

smilen,

This is no where near a C&UE and even if it were

you are no where near the time to call a C&UE.

C&UE has to be on a final unappealed decision.

Berta may pop in on this thread and mention

you can ask the VA to call a C&UE themselves on a decision,

but what you have is not a C&UE.

samiam,

Welcome to Hadit. You posted,

"I was told that these claim of CUE will be taken up at the Hearing you have before your BVA Appeal (Form 9)."

A claim for C&UE can be either with the VARO,BVA or Court,

where ever it is - a specific claim for C&UE must be filed unless VA calls it on

themselves which rarely happens.

jmho,

carlie

[smilen66]

Hello Smilen66,

Sorry to hear of your denial. Is this the first decision made on your claim? I do know for a fact that as we all get older the chances of degenerative bone disease is more common. But, if your claim is for degenerative bone disease in the lower back then all the treatment you received for the Thoracic area would not be the same. The lower is the Lumbar area and if that is where your pain is then the Veteran Affairs can say that that was the only doctor visit where low back pain was mentioned. Now, the CUE. That is something I have one my claim when I had the DRO decision made and my evidence was listed as a Notice of Disagreement instead in the Evidence Used. I was told that these claim of CUE will be taken up at the Hearing you have before your BVA Appeal (Form 9). Any one word in your medical records can change a whole claim. It has to be just like your claim for compensation. Go back and look at other parts of your records where you may have had a physical for transfer, or for hazardous duty and see if there is anything mentioned about pain in the lumbar or lower back.

Good Luck.

Hi Samiam,

Thanks for responding. Yes, this is the 1st decision made on my claim. I agree "I do know for a fact that as we all get older the chances of degenerative bone disease is more common." You are current on your research. My point of contention, (I apologize for sounding angry) is when I fell off that truck in Nov. 1980, I was 24 years old. I looked backed at the treatment given for each region and it was either heat or balm or medication depending upon the region.

My claim was for back condition. I now realize , I should have been more specific and named all parts of my back. The V.A. chose to focus on thoracic and lumbar.

Samiam stated: "Now, the CUE. That is something I have one my claim when I had the DRO decision made and my evidence was listed as a Notice of Disagreement instead in the Evidence Used." Please expound...I really don't understand.

As for transfers, I only went Alabama to Georgia and nothing is mentioned about pain in my transfer.

Thanks for being genuine, knowledgeable and compassionate in your response!

[smilen66]

Remember that a CUE is done on a final decision. If you have the ability to appeal a denial that is much easier than trying to prove a CUE. An example is a claim you filed ten years ago that was denied and never appealed. You look at your C-file one day and you discover some gross error the VA made that would change the outcome of your claim. That might be a CUE. The CUE is the last resort.

Okay, I understand. I appreciate you spelling it out to me...that's what I need. Thanks also, for the example! It has already been suggested that I do a NOD and get a IMO...both of which I'm working on. I have an appointment with my medical Dr. on Wednesday and I'm hoping she can refer me to an Orthopedic Dr. I read somewhere on hadit.com it is better to get an IMO from a Dr. that specializes in what you are claiming. Thanks for your patience!

[smilen66]

smilen,

This is no where near a C&UE and even if it were

you are no where near the time to call a C&UE.

C&UE has to be on a final unappealed decision.

Berta may pop in on this thread and mention

you can ask the VA to call a C&UE themselves on a decision,

but what you have is not a C&UE.

samiam,

Welcome to Hadit. You posted,

"I was told that these claim of CUE will be taken up at the Hearing you have before your BVA Appeal (Form 9)."

A claim for C&UE can be either with the VARO,BVA or Court,

where ever it is - a specific claim for C&UE must be filed unless VA calls it on

themselves which rarely happens.

jmho,

carlie

Thanks Carlie! I've learned something this evening! I think I was grasping at straws because I didn't understand why my claim would be denied.It seemed everyone was soooo quiet but I now know it has been said.... NOD and IMO. Thanks again!

[Berta]

Carlie -you are correct as always on these CUE questions.

Back pain claims like this usually need a very strong medical opinion as to origin in service and chronicity.

Asking the VA to CUE itself can be done in certain cases when the decision is legally inaccurate.I dont see that potential here at all.

My recent award letter contained clear and unmistakable error which I immediately pointed out to the VARO.

Instead of closing the claim due to grant of full benefits (one of their errors) it is with a DRO again and still pending.

I stated the award was legally and morally incorrect and then cited 6 legal errors they made.

They dont care about the moral part-they cannot close this claim (and take credit for a EP at bonus time) until they properly award the ancillary benefits and offset refund from FTCA.And make a proper rating of my husband's numerous SC disabilities.

My past CUE call against them got me a second DRO review at which my vet rep was present.

Unfortunately by then the DRO had still not learned how to read.

Edited August 31, 2009 by Berta (see edit history)

[carlie]

Carlie -you are correct as always on these CUE questions.

Back pain claims like this usually need a very strong medical opinion as to origin in service and chronicity.

Asking the VA to CUE itself can be done in certain cases when the decision is legally inaccurate.I dont see that potential here at all.

My recent award letter contained clear and unmistakable error which I immediately pointed out to the VARO.

Instead of closing the claim due to grant of full benefits (one of their errors) it is with a DRO again and still pending.

I stated the award was legally and morally incorrect and then cited 6 legal errors they made.

They dont care about the moral part-they cannot close this claim (and take credit for a EP at bonus time) until they properly award the ancillary benefits and offset refund from FTCA.And make a proper rating of my husband's numerous SC disabilities.

My past CUE call against them got me a second DRO review at which my vet rep was present.

Unfortunately by then the DRO had still not learned how to read.

Berta,

I KNOW - YOU ARE NOT going to let them have the satisfaction of that EP code

until everything is finished CORRECTLY, especially the damned FTC offset !

You and I,are both like a dog on a bone !

And to think --- some people see tenacity as a negative :)

carlie

[Judy]

My original claim for widow's SC DIC was filed immediately after the death of my vet spouse (1990)and denied, appealed, remanded and denied (over a period of 5+ years)... there it lay until I "reopened" the case in 2007. Now it was denied again and I requested "reconsideration" with an IMO and claim was granted (ONLY back to 2007 when it was "reopened").

My question now is .... do I have a CUE here for the EED as they made an error in denying my claim for SC DIC back in 1990 at the original filing?

Also, separate question here if I may. He was reduced from 100% to 30% by VA when I applied for ed benefits (less than 18 months after discharge from service at 100% permanent rating USAF..cancer). Wasn't that a huge error? The reduction was done WITHOUT a C & P exam as far as I can tell from reading the C-file. I do not see any reference in the med rec's that support any C & P exam at that time.

Looks like they should have to pay for that schooling that WE paid for when they denied the benefit and also, they should have to pay for the 10 years of pay loss (explaining....he left VA compensation and returned to USAF retirement rather than accept a 30% from VA at that time)..so for 10 years (until VA again rated him at 100%) his pay was reduced.

He was receiving 100% rating pay at the time of his death in 1990 and had been for 8+ years.

Hope this is not too difficult to follow, thanks for any advise.

Judy

[samiam1978]

Remember that a CUE is done on a final decision. If you have the ability to appeal a denial that is much easier than trying to prove a CUE. An example is a claim you filed ten years ago that was denied and never appealed. You look at your C-file one day and you discover some gross error the VA made that would change the outcome of your claim. That might be a CUE. The CUE is the last resort.

Hello and thanks for the reply. My CUE was file at the DRO Decision. I was called by an agents for the DRO and said that they would waive my 60 days waiting period is I had all the evidence in. My claim had been on their books already for 2 years. I told them I would if the agent would check my folder to make sure the evidence I had turned in myself and had stamped at the Veteran Affairs Office was in my folder for this review. The agents said it was. I stress to him to physically open my folder and to look at the evidence I had send in and make sure that this was in my folder. It was about 50 pages of very vital evidence. He said he was looking at all of it right them and it was there for the DRO to use as evidence. So I waived my 60 days. 10 days later I get my decision in the mail and all 7 autoimmune diseases were denied. They were denied because there was not evidence of the environmental agents I had stated except asbestos. I looked at the "Evidence Used" and the 50 pages I had ask the agent to make sure were in my folder as evidence was not listed. They were listed under Notice of Disagreement. I had two Notice of Disagreements listed after the first decision was denied. The true one sent in the alotted time and this evidence. This evidence showed where, how, and fellow sailors statements of the fact that I was exposed to these environmental agents and it was never even used. I called the agent up at the Veteran Affairs office and he snickered and said to take it up at my BVA Hearing, which I will be doing. First of all you have a certain time limit to get your NOD in and I did that. It took all of 3 sheets of paper. The 50 pages is just way too many for a NOD and it is listed as evidence. I feel it was a mistake and that is why I filed the CUE. Anybody have a response, I would appreciate it.

[Berta]

I dont see the basis for a CUE here-

You should have received a VCAA letter a few months after you filed this claim. It should have stated exactly what evidence the VA needed to have.

Based on your post you are claiming "7 autoimmune diseases"-due to exposure to 'environmental agents.'

You need medical proof that environmental agents caused your disabilities and then proof of exposure to the environmental toxins or agents.

I deal with Agent Orange issues a lot so I know you don't mean AO- do you mean Project SHAD (112)? --what environmental agents did you identify?

"They were denied because there was not evidence of the environmental agents I had stated except asbestos"

Did VA confirm you were exposed to Asbestos?

Do you have any medical evidence that asbestos could have -as likely as not- caused the Auto immune diseases you have?

[Berta]

Judy I am confused here- and I forget- was he Agent Orange vet whose AO contributed to his death?

If so -I believe they should owe back to date of death under the Nehmer Court Order.

Did the VA ever award you Chapter 35 in the past?

Did they mention Chapter 35 in the award letter you got for DIC?

[samiam1978]

I dont see the basis for a CUE here-

You should have received a VCAA letter a few months after you filed this claim. It should have stated exactly what evidence the VA needed to have.

Based on your post you are claiming "7 autoimmune diseases"-due to exposure to 'environmental agents.'

You need medical proof that environmental agents caused your disabilities and then proof of exposure to the environmental toxins or agents.

I deal with Agent Orange issues a lot so I know you don't mean AO- do you mean Project SHAD (112)? --what environmental agents did you identify?

"They were denied because there was not evidence of the environmental agents I had stated except asbestos"

Did VA confirm you were exposed to Asbestos?

Do you have any medical evidence that asbestos could have -as likely as not- caused the Auto immune diseases you have?

Wow!!, Lets see the Veteran's Hospital has diagnosed me with COPD,Emphysema, Sarcoidosis of the lungs and skin, Fibrosis of the heart and liver, Obstructive/Central sleep apnea, Narcolepsy, Hypothyroidism, Hypertension, Rheumatoid arthritis of the knee and ankles, Sjogern Syndrome,Major depression with anxiety and panic attacts and on oxygen thearpy 3 liters 24 hours a day. The evidence I was talking about that was listed under Notic of Disagreement has statments from former sailors that were on the two commands with me stating that the exposure to asbestos, sandblasting duct(silica) mold, fumes from lead based paints used on submarines, anti-skid grinding for welding jobs, and toxie raw seweage from trial and error methord of learning the sewage treatment system on the USS Fife. Yes, the Veteran Affairs has confirmed the exposure to the asbestos only at the time of the decision. I do not have a doctor saying, MORE LIKELY THAN NOT, I only have 6 entries into my medical records of Upper Respiratory Infections and on my exit physical marked as having medical problem with ear nose and throat. That decision was made almost 2 years ago and have not heard a word. I did file my form 9 for a BVA appeal when the judge comes through my regional office and my VSO says he hopes it will be in the Spring of 2010. I am still planning on asking each doctor for that statment but I was hoping the evidence I had stamped would be use and be enough to prove the exposure. I appreciate any constructive information at this time for help. Thank you.

[john999]

1978

If you are going to prove service connection due to exposure to toxic agents you are going to need a lot more than just symptoms you listed. You are going to need medical opinions that the agents caused your problems, and that you were exposed to the agents. If the only thing you have in your SMR's ear, nose and throat infections and respitory infections you need major, major help with this claim. Are the autoimmune diseases presumptive for exposure to the agents in question? If they are not they you have to prove it. Just because some sailors say all those problems were caused by the agents you talk about is not proof. You are claiming Service Connection for 7 autoimmnune diseases from different agents? You might as well get a shotgun and load it up with birdshot and shoot it at the claims process. Do you have any evidence in your SMR's besides ear, nose and throat infections to claim all the diseases you list that you have now? Are you by any chance a heavy smoker?

[Berta]

You definiteley have conditions that are consistent with exposure to asbestos.

you stated:

"7 autoimmune diseases were denied."

Did your claim specifically list the disabilities that you attribute to asbestos?

such as the COPD and sarcoidosis?

There is a VA training letter for asbestos- I posted it here and will try to find it.You need to read it and maybve even use it for your claim-

You have to be Specific in stating the disabilities you claim and the nexus to your service-in each case.

It looks to me that the claim might have been worded too generally-

and you might need an independent medical opinion.

I think this topic should be moved up to claims research-

are you able to scan the last decision you got (cover the personal info)?

[Berta]

BINGO!

http://www.asbestos.com/navy/destroyers/uss-fife-dd-991.php

There is more on the net- USS Fife had asbestos on it-

I will try to get this topic moved up to claims research forum

[jbasser]

1978 what ships were you attached to and what was your Naval rate.

I may be able to assist you.

J

[Berta]

jbasser= I have the VA PIES list- we need to know his MOS too -certain Navy occupations have been classified by VA as possible and probable exposure to asbestos.

There are 3 different issues from 3 separate posters in the thread- hard to keep it straight- thanks for moving this.

His ship USS Fife definitely had asbestos in it-he might have slept under asbestos covered pipes.

Edited October 10, 2009 by Berta (see edit history)

[JamesBreckenridge]

Judy, you may be a Nehmer class member. What was your husband service connected for, and what were the causes of death and contributed factors on his death certificate, and was he ever on the ground in Vietnam? When did he die, and when did you file your claim?

DIC Nehmer example: Veitnam veteran dies of complications of diabetes (such as arteriosclerotic heart disease) in the mid 90s. Widow applies for DIC, and is denied because the vet isn't service connected for a heart condition. The Nehmer case later comes down and per 38 CFR 3.816, the widow can reopen the claim asking for service connected death based on complications of diabetes due to herbicide exposure. THe effective date would be date of death or date of the first claim, or the first of the month in which he died, depending on how the dates work out. This is one of the few exceptions for granting an effective date prior to a change in law.

You may want to start your own topic here in Claims Research

[Berta]

Here is the VA PIES list= it is dated 2002 so I dont know if any changes have been made.

Asbestos_VA_PIES.pdf