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!