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New Vet With Questions


vetmovinon
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Question

Hello, I'm not familiar with blogs or forum mechanics - I'm new here, and thanks for having this service on the web.

I am 60% SC since 1/2002. I had no idea of how VA compensation worked when I filed so I just claimed the essentials that I was dealing with at the time and was happy to see some cash resulting from it. I filed a CUE claim that's been waiting in the system for 2 years. In my original claim I listed L and R carpal tunnel syndrome and also separately claimed osteoarthritis in L and R wrists. I was granted SC for L carpal tunnel (CTS) at 30 and right CTS at 20. The VA examination reported there was no arthrtitis in either wrist shown on X-rays at the time of the VA exam. The VA examiner stated that I had full range of motion bilaterally, and that although I claimed there was pain, he didn't see evidence of it. In the exam report there was no diagnosis of a wrist disorder.

The rating decision listed left carpal tunnel and right carpal tunnel as separate disorders and within the narrative of each, reported that I had claimed bilateral wrist arthritis. The wrist disorder itself was no further addressed in the rating decision.

I did not know enough to formally disagree when I was notified of the award. I was happy to get what I got and move on.

2 years later while in a flare up of wrist pain, I read over the VA rating decision again and noticed it didn't address my wrist claim, other than a "claimed as" for carpal tunnel. I reviewed my service treatment records and found treatment for a broken right wrist in 1981 with X-rays of a fracture and calcification. The record showed later entries of treatment for left wrist osteoarthritis with an entry from a doctor stating an X-ray of the left wrist was reviewed. There was no actual X-ray report in the record.

From this, I thought that a mistake had been made by the VA by: not making a decision specific to the claims of arthritis on each wrist; and, by not reporting the treatment history showing a fracture with calcification on X-ray of one, and a diagnosis of arthritis on the other with the doctors statement that he had reviewed the X-ray.

I did not appeal the decision since the 1 year window had past. I reported the decision had a clear and unmistakable error in not making a decision on the two wrist joints that were claimed, since wrists are joints and not nerve disorders. I then brought up the error in not entering the evidence of treatment findings from the records documenting treatment of arthritis with X-ray evidence involved.

I am apprehensive about the whole thing. The overall SC percentage would go up to 70 combined if I have one more 10 evaluation and that is a bunch of cash in back pay that the VA might try to defend against. I know a mistake was made but, to cover themselves, I just wonder if they might admit the mistake and grant one at zero for the X-ray evidence without a VA examiner's confirmation of painful and limited motion; Then deny the other as no having confirmation of X-ray evidence in the records, stating the doctor report was not specific enough, or something similar. If they decide the CUE that way I'd get nothing. If they don't want to accept my report of pain on VA examination, fine, but then grant both wrists at zero for arthritis so I can have 10 for multiple major joints rated 0 for arthritis. If they deny both, well that's just another mistake to elevate.

Am I being clear on any of this? I think I may be using their language here and that's confusing in itself.

Have you had experience with anthing similar to this??? Any pointers you can give me???? If I am mistaken in my interpretations or assumptions, please tell me straight up!

Thanks

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Did you highlight this in the CUE claim?

"with calcification on X-ray of one, and a diagnosis of arthritis on the other"

CUES depend on legal errors, not medical errors as you know- so what Legal error did you cite in the CUE?

Did you say they erred by using the wrong diagnostic codes and had they used the correct codes, the rating would have been higher?

"I thought that a mistake had been made by the VA by: not making a decision specific to the claims of arthritis on each wrist"

Was arthritis of the wrists specifically claimed in the original claim the CUE is based on?

Did it raise to a ratable level at that tme per the VA Schedule of Ratings?

Because a CUE depends n a manifestly altered outcome- more comp due- and if the disability didnt fall into ratable level-at time of alledged CUE then the VA can say that there was no cmp due therefore no altered outcome.

"I know a mistake was made but, to cover themselves, I just wonder if they might admit the mistake and grant one at zero for the X-ray evidence without a VA examiner's confirmation of painful and limited motion; Then deny the other as no having confirmation of X-ray evidence in the records, stating the doctor report was not specific enough, or something similar. If they decide the CUE that way I'd get nothing. If they don't want to accept my report of pain on VA examination, fine, but then grant both wrists at zero for arthritis so I can have 10 for multiple major joints rated 0 for arthritis. If they deny both, well that's just another mistake to elevate."

What do current X rays regarding the wrist arthitis?

You did some leg work here and I commend you for that-

I have had a CUE claim pending since 2004.

Some of the responses I have gotten from VA in past almost 7 years are ludicrous.They will try to confound the issues on CUE if they can.

It is certainly a first of a kind CUE claim and that is the main reason no one at VA really wants to produce a logical denial on it.

It means they have to rate their malpractice. It was sent for BVA transfer and suddenly pulled and sent to Nehmer people in Phila.

I supported the legal errors in this CUE claim with 2 OGC precedent decisions, BVA 'legal' remarks in past BVA decision at the VA web site, with specific regs in 38 USC, 38 CFR, and M21-1MR as well as evidence from the OGC and Regional COunsel that directly involved my past FTCA for my CUE .

All legal evidence. The VA in Buffalo never has read a single piece of my CUE evidence since 2004.

They never read any of my medical evidence for my 2003 Claim. The BVA did and awarded last year.

So I couldn't wait for the BVA to get my CUE claim but it suddenly has been handled differently now under Nehmer.

I have no idea how my SMC accrued CUE will resolve and it is hard to know how yours will resolve.

Again I need to state that VA will obfuscate and confuse and confound all they can in responding to CUE claims in many cases so I commmend you for projecting those land mines into the future of your claim-

I mean of course you have already projected how they could deny and why.

CUES are a collateral attack on a past VA decision that is final and they become a war game.The way to fight them is with their own regs and to clearly spell out the Legal error they committed ( no DTA stuff)

and how it cost you comp due to those errors.

"Have you had experience with anthing similar to this??? Any pointers you can give me???"

There are a few other CUE ers here and there is LOTS of CUE info in our CUE forum.

Also if the CUE ends up at the BVA and they deny without prejudice-that means, by carefully rewording the CUE in a different way -you can file it again.

CUE is not a one shot deal -as many vet reps used to say.

Medical issues in CUE scenarios have to be established and documented already by the VA in prior decisions because the CUE can only rest on their misapplication of VA case law and regs.

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