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Question
acesup
Hi,
New member here, though I have been hanging around for some time now.
I recently filed a claim of CUE on multiple issues. I wrote up an 8 page letter and mailed it to the VARO that had decided against me in 2001 and 2003.
At those times, I did not appeal, out of naivety and acting on poor advice.
Will the VARO discuss these with me and review their handling of my case, or will they simply tell me to file for a BVA hearing?
Here is most of my letter:
> TO: VA Regional Office
>
> SUBJ: Clear & Unmistakable Errors
>
> Dear Sir/Madam:
>
> Please accept this letter as an appeal based on Clear and
> Unmistakable Errors on a number of issues pertinent to my
> claims for Service Connected disability ratings.
>
> If any of these issues should need to be pursued under a
> different path to resolution, please advise me of what needs
> to happen.
>
> The issues:
>
> 1.Entitlement to Service Connection for Thoracic
> Degenerative Disc Disease, Cervical Spine Degenerative Disc
> Disease, Headaches and Migraines, Sciatic nerve disability,
>
> 2. Entitlement to Total Disability for Individual
> Unemployment
>
>
> Background:
>
> I served in USAF from 20 Sep 1972 to 8 Feb 1974, receiving
> a discharge under honorable conditions.
>
> Prior to entry into the USAF, I had no history of
> back injury or pain. This is supported by evidence in
> my C-file from AFEES Raleigh, NC medical examination dated 8
> Dec 1971, and an entry medical examination performed at
> AFEES Raleigh, NC on 20 Sep 1972. At the time of entry
> into service, I did suffer occasional headaches which were
> not incapacitating, as borne out by evidence in my service
> records and C-file.
>
> Events surrounding my back injury claims, to the best of my
> recollection, are as follows:
>
> In September 1973 I was on a detail to move various
> large metal desks and office
> equipment from my squadron's offices and barracks,
> ostensibly so they could be replaced with newly purchased
> equipment. While carrying a large desk downstairs, I
> was backing down with one end while two fellow airmen
> carried the other end. One of the airmen stumbled,
> causing me to suddenly bear the entire weight of the desk.
>
> The force of the heavy weight suddenly being thrust
> upon me caused a violent, jerking motion, because it was far
> more weight than I could handle, and because it was so
> unexpected.
>
> I felt a sudden, sharp pain in my spinal column,
> mostly in the lumbar and thoracic regions. Shortly
> afterward, my back ached all over from neck to sacroiliac,
> and I had a severe headache. After taking some
> medication and a hot shower, the pain subsided, so I did not
> think it was a serious injury at that time.
>
> Soon afterward I began having recurrent back pain in
> all regions, usually accompanied by severe, debilitating
> headaches.
>
> I subsequently went on sick call numerous times, but
> the doctors initially and incorrectly diagnosed the back
> problems and headaches as caused by tension. Since the
> worst pain seemed to be in lumbosacral and thoracic areas,
> very little mention was made of injury and pain in the
> cervical spine area.
>
> However, the VA Rating Decision of 26 Jun 1974 does
> note a complaint of general back pain and a specific
> complaint of occipital and posterior cervical spine
> pain.
>
> Upon separation from USAF on 8 Feb 1974, a claim for
> VA Compensation was filed on my behalf by a unit clerk that
> only listed chronic low back pain and headaches, and a few
> minor conditions that were totally unrelated to my service.
>
> In March 1974, I was admitted to the VA Hospital in
> Fayetteville, NC, with what was diagnosed as Infectious
> Hepatitis A. My active VA Compensation claim was
> amended to add this disease.
>
> I was later rated 10% Service Connected for
> residuals of hepatitis, and 0% Service Connected for Chronic
> Low Back Pain. After filing a Notice of Disagreement,
> I was awarded 10% for Chronic Low Back Pain.
>
> In October 2000, I filed for re-evaluation of my Service
> Connected disability ratings for increased Chronic Low Back
> Pain. I also included a claim for Service Connection
> for pain in my entire spine, nerve impingement,
> arthritis, and migraine and tension headaches
> secondary to Chronic Low Back Pain..
>
> I had been forced to go out on total disability from
> my position as a machinist with General Electric Aircraft
> Engines, where I was employed for nearly 19 years. My
> last day worked was in March of 2000, and I was forced into
> medical retirement effective 1 Feb 2001 due mostly to the
> cumulative disability and pain in my spinal column, in
> lumbar, thoracic, and cervical spine, plus secondary
> conditions including sciatic nerve problems.
>
> I then filed for Social Security Disability Income.
> (I was awarded total disability on SSDI in October 2004,
> retroactive to 1 March 2000.)
>
> On 29 November 2001, I received a VA Decision Letter
> that increased my rating to 40% Service Connected for
> Chronic Lumbar Strain with Degenerative Disc Disease.
> I was denied Service Connection for cervical strain,
> migraine and headaches, and elevated liver enzymes. In
> May 2003, I was denied.
>
> In 2002, I applied for VA Chapter 31 Vocational
> Rehabilitation. I was determined infeasible for
> employment due to my disabilities.
>
> In May 2002 I filed a claim for Total Disability for
> Individual Unemployability. On 8 May 2003,
> I received a Decision Letter denying me TDIU.
> In September 2009, I once again applied for Chapter
> 31 Vocational Rehabilitation. Once again, I was told I
> am considered infeasible for employment due to my
> disabilities.
>
> I am seeking relief for a variety of Clear and Unmistakable
> Errors on the part of Ratings Offices in both Winston-Salem,
> NC and Little Rock, AR.
>
> Evidence:
>
> That evidence in various service records and my C-file was
> not properly evaluated in denying my 1974 claims for Service
> Connected ratings as listed below, and that laws and
> regulations regarding Service Connection were sometimes
> misapplied, constituting Clear & Unmistakable Errors on
> the part of the Rating Office.
>
> 1. In initial claim upon separation from USAF in 1974, the
> R/O failed to consider that my injuries were not restricted
> to my lumbar spine, even though service and VA medical
> records indicated otherwise.
>
> 2. A sympathetic or inferred claim should have been
> initiated for thoracic spine injury and pain.
>
> 3. A sympathetic or inferred claim should have been
> initiated for cervical spine injury and pain.
>
> 4. A sympathetic or inferred claim should have been
> initiated and investigated for sciatic nerve impingement
> with pain in lower extremities.
>
> 5. Had those sympathetic claims been properly identified as
> Service Connected and rated accordingly, they would have
> provided the nexus for Service Connection of aggravated
> headaches.
>
> Evidence in my Service records and C-file clearly suggest
> and support these injuries, including but not limited to:
> Physical examinations prior to entry into USAF reveal no
> spinal problems.
> After injury in September 1973, I reported to sick call on
> numerous occasions for pain in all spinal segments;
> lumbosacral, thoracic, and cervical, and debilitating
> headaches that accompanied back pain.
> My processing out physical on 29 Jan 1974 noted frequent
> headaches, recurrent back pain.
> At my C&P exam of 4 Jun 1974, Radiographic Report
> describes (a) a right convex upper mid thoracic scoliosis,
> and ( :o a left convex upper mid lumbar scoliosis, as well as
> residuals of lumbosacral injury. Since scoliosis did
> not exist prior to injury in the USAF, it should have been
> presumed and rated Service Connected
> Ratings Decision of 26 Jun 1974 notes that in October 1973
> I complained of occipital and posterior cervical pain.
> However, there was never a request for a study of C-spine to
> investigate or determine any residuals of injury.
>
> VA Form 21-6789 Deferred or Confirmed Rating Decision form
> notes a compression fracture.
> Orthopedic exam of 9 Dec 1974 states that "Most of the
> pain is in the lower part of the back, but is getting some
> higher in the back. He also is getting some pain in
> both legs."
>
> Further Clear and Unmistakable Errors were committed again
> in 2001, when I petitioned
> VA to re-evaluate my Service Connected disability
> ratings. While I was awarded an increase to 40% for
> Chronic Lumbar Back Strain with Degenerative Disc Disease,
> my claim for Service Connection and ratings for C-spine and
> headaches/migraines was denied.
> Issues arising or recurring this time were:
> 1. This should have also been construed as an implied or
> sympathetic claim for thoracic spine disability. The
> evidence shows that scoliosis was repeatedly detected in the
> T-spine segment both in my 1974 and 2000 claims
> examinations, but no effort was made to identify it as a
> Service Connected claim deserving of a rating.
> 2. Also, an implied or sympathetic claim for sciatic
> nerve disability in lower extremities should have been
> developed and investigated.
> 3. Cervical spine examination revealed a diagnosis of
> residuals from the 1973 injury, but the Rating Office denied
> Service Connection, even though there is evidence to support
> said claim.
> 4. My claim for headaches and migraine aggravated by these
> conditions was subsequently denied because the above
> conditions that would have provided a nexus were denied.
>
> Evidence in my service records and C-file clearly was
> ignored or overlooked, constituting Clear and Unmistakable
> Error pursuant to 38 CFR 3.105 (a) including but not limited
> to:
>
> On form 21-4138 dated 20 Oct 2000, I claimed that I had
> increased back pain, nerve impingement, and arthritis, and
> that this condition had now progressed to include my entire
> spine.
> Exam Request Report generated by VARO Little Rock, AR
> states in part "He is now claiming nerve impingement, pain, and
> arthritis in entire spine. He is also claiming
> migraine headache secondary to his lowback condition".
> Form 21-4138 that I submitted on 19 Feb 2001 states in part
> "Injury to lower spine has progressed, causing more
> intense pain and sciatic nerve impingement, disc problems
> along spine." Additionally "Also has caused
> arthritis, stenosis, spondylosis, and migraine
> headaches."
> C&P Exam Request from VARO Little Rock notes in part
> "He complains of pain, sciatic nerve impingement, and
> arthritis along spine".
> Radiology Report from VAMC Shreveport dated 31 Jul 2001
> states in part "mild dextroscoliosis of the upper half of
> the T-spine" and "A little facet arthropathy is seen
> upper half of the T-spine."
> C&P Final Report dated 27 Aug 2001 notes in part "He
> also has trouble in the middle part of his back at times
> with pain and feeling of stiffness."
> Also C&P Final Report of 27 Aug 2001 states "The low
> back pain sometimes goes down to the lower
> extremities…"
> On 7 September 2001, form 21-68 instructs VAMC Shreveport
> to study "Spine (Cervical, Thoracic, & Lumbar)."
> Range of Motion examination dated 16 October 2001 shows
> T-spine flexion as severely limited
> C&P Examination Report dated 21 Nov 2001 states in part
> "X-rays of thoracic spine were interpreted as mild
> degenerative joint disease."
> A formed faxed to VAMC Shreveport on 26 November 2001
> instructs examiner to review C-file and furnish opinion
> whether cervical strain is secondary to lumbar spine
> disability.
> Rating Decision of 29 Nov 2001 does not address any
> disability of Thoracic spine or sciatic nerve disability.
>
> Lastly, on 8 May 2002 I filed for entitlement to Total
> Disability for Individual Unemployability. The rating
> decision letter of 8 May 2003 denies entitlement.
> This is absolutely a result of being denied Service
> Connection for claims arising from my 1973 injury.
>
> OTHER:
>
> I am aware that in 2003 the lumbar and thoracic areas were
> combined as one segment for rating purposes.
>
> RELIEF SOUGHT:
>
> 1. Service Connection of residuals of thoracic spine injury
> with a rating of 10% retroactive to 9 Feb 1974.
>
> 2. Subsequently, Service Connection of residuals of
> thoracic spine injury with a rating of 10% retroactive to 20
> October, 2000, until such time that thoracic and lumbar
> ratings were merged; after that date, a combined rating of
> 60% for thoracolumbar spine.
>
> 3. Service Connection of residuals of cervical spine injury
> with a rating of 10% retroactive to 9 Feb 1974.
>
> 4. Subsequently, Service Connection of residuals of
> cervical spine injury with a rating of 40% retroactive to 20
> October 2000.
>
> 5. Service Connection for Headaches with a rating of 10%,
> retroactive to 9 February 1974.
>
> 6. Subsequently, Service Connection for Headaches with a
> rating of 10%, retroactive to 20 October 2000.
>
> 7. Service Connection for sciatic nerve disability, with a
> rating of 0% retroactive to 9 February 1974.
>
> 8. Subsequently, Service Connection for bilateral sciatic
> nerve disability, with a rating of 10% each side retroactive
> to 20 October 2000.
>
> 9. Service Connection for migraines with a rating of 30%,
> retroactive to 20 October 2000.
>
> 10. Entitlement to 100% P&T schedular or TDIU
> retroactive to 1 April 2000.
>
> Thank you for your time in investigating these claims and
> initiating the methods by which we can resolve them.
> Please let me know if I need to fill out any official forms
> to petition for redress.
>
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