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?

[deltaj]

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.

40% SC for back +30% SC for chronic pain = a combined rating of 58% which I think is rounded up to a combined rating of 60%, right? I think the issue here isn't the combined percentage but whether the veteran can establish these SC disabilities keep him from working. What medications is this veteran on for his chronic pain and do the effects of these medications keep the veteran from working? If so, this needs to mentioned at V.A. examinations and in appeals.

[JamesBreckenridge]

Was a C&P exam not done on this veteran, complete with X-rays? Did the rater just use your service treatment records? Were you MEB'd out?

It's quite possible this is NOT a CUE. Maybe the evidence the rater had at the time said it was a 0 percent. Okay, so time passes, and the veteran learns his condition is actually quite a bit worse than that, but he's got to come in and file a claim for increase or SOMETHING.

For SERVICE CONNECTED conditions, treatment at VA facilities acts as an informal claim for increase (treatment for non service connected conditions *can* be treated as informal claims for service connection, but only if the vet makes it clear that he intends to file a claim on the issue... I learned last week about this important distinction).

So, whether there's a CUE depends a lot upon what the evidence was and how the rater reached his decision back in the day. Probably not a CUE. But if your service connected back is as messed up as you say it is, then you should have been getting regular treatment for it, and if one of those dates was at your VAMC, you could use that as a claim for an earlier effective date.

[carlie]

James,

I think you are referring to 3.157 and it does have some strict guidelines.

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

http://ecfr.gpoaccess.gov/cgi/t/text/text-....66&idno=38

carlie

[Philip Rogers]

I'd go after the CUE. They aren't that hard to win. I helped my late friend, TM, win a CUE back to 1955, for prostatitis(sp), a couple of yrs ago.

pr

[LarryJ]

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.

John, please. Let's ask him FIRST if he is, indeed, having depression.

Then, if so, has he actually seen anyone for this problem. Yes, it is true, VERY TRUE (I'm proof) that depression goes hand in hand with never-ending pain, but, and I qualify this with my own experience.........if he IS suffering with depression, then he needs to, to make things easier should he file a claim for depression, that he get himself in "treatment" for this depression (and for "chronic pain syndrome" also) at his VAMC. He needs, in other words, to get a referral from his PCP, if he hasn't already done so, first of all, FIRST OF ALL, for treatment, and only secondarily, for the "paper trail" leading up to his filing the claim.

I do agree with you. He needs this referral to a VA psychiatrist. He just needs it BEFORE anything else is either filed or his possible depression leads to worsening or worse.

Sorry, but I felt that I needed to voice my feelings. No bad.

[rdnkjeeper]

I got out end of contract. I did have a C&P for all the issues, but at different times....have had 4 or so over the last 13-14 years. I do have cronic pain syndrome and I do see a VA psyc.