Would This Be A Case Where Cue Can Be Used?

[rdnkjeeper]

First a little history, I injured my back in March of 1996. Was schedualed to get out in June of the same year. The military didn't do anything for my back except give me bedrest, flexoril and motrin. As soon as I got out I went into the VA system and I was rated at 0% but I was service connected for chronic muscle spasm in my mid back. I didn't know any better at the time and didn't fight. But I was having a lot of trouble with my back. Three years later I requested an upping of my percentages, and got into the VA system full time. My rating was changed to 20%. I have seen 6 or 7 Doctors and until November of last year NONE, even after begging would give me an MRI or help with finding out what was wrong with my back. The Military was the same way......I begged for an MRI or something so we knew what was going on with my back.

My Mri results showed (I haven't looked at them in a while so I may be a little off on the numbers) 5 herniated discs, 4 bulging discs, Canal stenosis, spinal stenosis, Disc degeneration, Osteoarthritis and one or two other things in my Thorasic and Lumbar. I am in Milwaukee today to talk with the Neuro......

I was just sitting her thinking about how many pain pills I have to take to keep working and it popped into my head out of no where that this might be a CUE case. If they would have done an MRI earlier we might have been able to prevent my back from getting so bad. I don't know!

What do you think?

[broncovet]

This is my recommendation. Remember that CUE is applicable 1) only to decisions more than a year old, 2) does not apply to a judgement call of a rating specialist

3) must be "material" and affect the outcome (that is, if the rater misspells a word it is not CUE) and have to be what the VA calls "undebatable".

I think you should apply for an increase, and forget (for right now) about CUE. Once you get your increase, then you can ask for an earlier effective date, and possibly CUE.

Here is my reasoning:

Once you utter the word "CUE" to the VA, they stiffen up and go on the attack. You need to take the enemy by suprise. So, just go along like everything is hunkey dorey, but keep copies of every thing, and order a copy of your C file.

Study the regulations and cases where Veterans have won CUE. Look for a way to apply that to your case, especially on the EED. After you get a decision with the award you want, then CUE the earlier decisions for an EED.

[rdnkjeeper]

Thanks, I did put in for an increase May of 08, they denied me in March. My VSO fired off an appeal with more evidence and right now we are still waiting for a reply.

[Berta]

Cue is only applicable to Final VARO decisions that were never appealed.

Or BVA decisions that were never appealed.

The "manifested altered outcome" means you have to prove they made a legal error that cost you retro.

The medical evidence must already be established.

I think that is what you meant here but anyone attempting a CUE claim should read, read, and then read some more-the actual CUE regs (for VARO and BVA Motions on CUEs etc )as well as CUEs awarded and denied by BVA and the CAVC.

A lot of great CUE info and cases are here at hadit.

[deltaj]

First a little history, I injured my back in March of 1996. Was schedualed to get out in June of the same year. The military didn't do anything for my back except give me bedrest, flexoril and motrin. As soon as I got out I went into the VA system and I was rated at 0% but I was service connected for chronic muscle spasm in my mid back. I didn't know any better at the time and didn't fight. But I was having a lot of trouble with my back. Three years later I requested an upping of my percentages, and got into the VA system full time. My rating was changed to 20%. I have seen 6 or 7 Doctors and until November of last year NONE, even after begging would give me an MRI or help with finding out what was wrong with my back. The Military was the same way......I begged for an MRI or something so we knew what was going on with my back.

My Mri results showed (I haven't looked at them in a while so I may be a little off on the numbers) 5 herniated discs, 4 bulging discs, Canal stenosis, spinal stenosis, Disc degeneration, Osteoarthritis and one or two other things in my Thorasic and Lumbar. I am in Milwaukee today to talk with the Neuro......

I was just sitting her thinking about how many pain pills I have to take to keep working and it popped into my head out of no where that this might be a CUE case. If they would have done an MRI earlier we might have been able to prevent my back from getting so bad. I don't know!

What do you think?

Get a complete copy of your C file from V.A. so you can see all the rating decisions and all the the service medical records V.A. had at the time of the decision. Also were any other service medical records available under 38 CFR 3.105 ©? I think you need to read the federal circuit decision in Hayre v. West. Keep in mind that Hayre was initially denied service connection and that is not your situation. You apparently were granted a 0% service connected rating on your back. Sometimes when V.A. is trying to do initial ratings they fail to get all in service hospital reports in support of the veteran's pending claims and those records are kept by a separate unit at the National Personnel Records Center. My advice is to look at the service medical records V.A. has and see if they allude to any other service medical records at other facilities which V.A. should have obtained.

[rdnkjeeper]

They did decline me for my ankles, and for that decision they never even looked at my SMRs. Thanks for the info everyone.....

[john999]

I think you would be a lot better off just going for an increase based on the MRI results rather than chasing a CUE claim. Get the maximum for the back and while you are at it fill for depression as secondary to your chronic pain. This may be how you get to a rating where you can apply for IU. If you get 40% for the back and 30% for your chonic pain disorder you would be close to IU. You have to find ways to skin the cat. If you are taking handfulls of pain pills to keep working I know you must feel like hell. If you have been suffering pain for many years you have chronic pain disorder and this is compensable on its own apart from your back. You should get referred to a VA psychiatrist.