Cue Or Not To Cue

[Michellee]

If anyone see's Berta please send her my way. I know she will direct me in the right direction. Well here is the deal. I was medically boarded off of active duty for an accident that was well documented actually I was even transfered not quit cleared and sent to the VA for evaluation and treatment. Within my presumptive period after the medical board/disharge I filed numerous claims all at once for numerous symptoms/injuries. Most was given o% or denied and few were given very low percentages like for my foot/hip/uterus/pelvic etc. That was then back in 98. The thing that bothers me to this day is that I think a mistake was really made on the neck and back claim. Today I have pretty good ratings for my lower/back/sciatica etc and was eventually service connected. My neck progressively has gotten worse and worse and still not service connected. The rating the decision they gave me right after the accident for my neck makes no sense. They didn't even do a MRI back then even though I begged. As a result today my MRI's have shown I have spinal cord injury from the cervical area and all sorts of spurs from previous fractures in the neck area. I have stenosis, Ankylosing spondylitis of the cervical spine, myelopathy of the cervical spine, bulging disk etc. So when I filed for neck and back pain I was trying to call their attention to address my injury to my neck and they denied it. Here is what the rating decision in 98 stated for my neck during the presumptive period (after falling in a 15 foot hole which they had the accident report evidence).

The law provides that a person who submits a claim for VA benefits must submit evidence sufficent to justify a belief that the claim is well grounded. A well grounded claim is plausible claim, one which has merit on its own or is capable of substantiation. Such a claim need not be conclusive, but it must be accompanied by evidence which shows that claimed condition exist and is possibly related to service.

Compensation is payable for a disease or injury which causes a disabling physical or mental limitation. The evidence regarding neck and back pains fails to show a disability for which compensation be be established. It is therefore not a well grounded claim which can be resolved. In order to establish a well grounded claim, it is necessary to provide evidence which demonstrates an actually disabling condition. (this is the part that makes me wonder whose records were they looking at) Services records contain no evidence of an injury to the neck or back and no indication of a chronic disease process relative to neck or back. Xrays of the cervical and lumbusacral spine on Va examination were normal.

Now they did not assist me in addressing my symptons. Today they have changed their tune about my back (lower) and of course I lost the initial dates. I just accepted it. Back then I really didn't know much about claims or the Va and would have have believed if they told me the sky was purple. The thing is through out the years since the initial claim I kept complaining and seeking answers about my cervical neck pain and finally about 2006 they started doing MRI's and other tools to look at it. That's when I started pulling my records and finding all the results of the MRI and progression of my back and neck injury. I didnt even think to pull records until another veteran taught me the process. I just didn't know. I always played by the rules and I thought they did. I am still suffering today. I finally after my doctor told me blantantly that this injury to my neck was a direct result of the accident because of how young I am and how the MRI's look. Today I do recieved treatment for my neck but it was never service connected no matter what my doctor told me. I had to make a decision and so not really understanding about CUE's I thought it may be best to just reopen my claim from 1998 for my neck pain (cervical) and file for all the newly diagnose cervical results from my doc and MRI. After reading so much on Hadit and another Vet site I am wondering If I really did the right thing. Did I just let them off the hook. I have read multiple post on this site about what makes a claim, Browskoski test etc., and I am wondering I made the right move. It appears that I didn't I keep asking should I have Cued or Not. They were well aware of my accident during the first claim and had the accident report so it was well grounded. Sure it may not have been conclusive because there was no official diagnoses made but I was seeking medical answers and care based on my symptoms to which I kept being told maybe I pulled a muscle in my neck. They had the after action report from my commander which showed evidence, they had my medical out paperwork where I checked the box for back and neck pain. Sure the pain then wasn't as bad as it is now but it did cause me pain and spasm that I expressed to them in my claim as neck and back pain. I didn't know then how to write it up any different than that and they didnt bother to C & P all they did was an xray which they claim was normal. Funny thing is couple of years later I continue to complain and the next set of xrays shows spurs and other things in the same area. Obviously, the pain that I was feeling then in my neck and back during the presumptive period was the injury that I am still suffering from and proven by recent MRI's today. I would like to hear various takes on this. Cue or not to Cue?

Edited March 24, 2011 by Michellee

[Berta]

Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?

Such as the medical board findings?

[Michellee]

Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?

Such as the medical board findings?

No evidence list provided. What I scanned is all they ever gave me. I thought then that I had no chance in appealing that no meant no. I didnt no how it all worked and I just sucked it up and kept trying to recieve medical care for it. Later down the line a PCP questioned me of why I was not service connected for any of my back issues then and I tried to explained I had filed and got denied. He encouraged me to refile. So I did. Then I got the rating a few years later for the lumber but didn't ask for the neck. I didn't know your neck could be secondary to you back? hmmmmm. I am on so much medicine I really think it gets the best of me. I just reopened claim in Jan 2011 for my neck and I filed some other new claims with that for my IBS and migraines as secondary. The migraines are listed as secondary to my cervical stenosis, and the IBS secondary to meds I take for my back and neck and host of other things. I am still trying to get them to address my foot drop. I included a request for increase for my LIS Franc Injured left foot which is slightly twisted and dropped which I only got rated at 30% with no special K for the foot drop. Thats not right either. They need to rate me according to the foot drop. I can't walk on that foot at all. It drags. From alot of the CUE information on site that I have been reading made me question how I am going about this neck claim since 1998 and I really believe some things are not being rated correctly or either I am not presenting it correctly. Either way I am trying to straighten it out. No it doesn't seem that they even looked at the accident report at all but then they mention the fall when they were rating other items like my wrist etc on the same sheet. So I was really confused by that. How could I fall 15 foot and you not even consider my neck and back but you consider that record to rate my wrist and my foot. However, later they did come back and rate my Lumbar and give me the DDD and MRI's today show spurs and bulging disk through out from the S1- S4. Then they turned around do EMGs and give me sciatica as well for both legs and remember all this was after they denied me since 98. They made it right with that part but not the neck. I am having a hard time correcting and connecting that part. Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?

Edited March 25, 2011 by Michellee

[Michellee]

BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.

[carlie]

She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too.

Michellee,

Secondary conditions need to be correlated to something that is ALREADY SC'd.

Aren't some of these medications RX'd for your ALREADY SC'd back injury ?

If yes, then I would submit something in writing to clarify this ASAP !

JMHO

[Philip Rogers]

Michellee - I can 99.9999999999999% guarantee she only heard that "your IBS is secondary to the meds you take for your neck" and, as such, will deny the IBS and, probably, the migraines. I hope I'm wrong, but I think it's highly unlikely. As for your CUE, I think you have a potential CUE. You need a copy of the accident/after action/incident report and all the medical records, from the accident. Hopefully there's something in there about your neck. There's no doubt a fall like that could cause a neck injury but the problem is/will be convincing the VA.

pr

BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.

[Berta]

Is it possible they considered the neck injury in this decision:

"later they did come back and rate my Lumbar and give me the DDD and MRI's today" etc.

or part of this:

"cervical stenosis"

"Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?"

If they made a legal error in that decision by failing to rate the neck disability,or code it properly and the proper rating would have been service connectable at least at 10%,based on the evidence they had at that time-then there is potential CUE.

Does your C file reveal any blue rating sheet at all?

If we saw the actual older decision we could help more but there is plenty of CUE info here.

The denied CUEs that linked here in the CUE forum are as helpful as the awarded ones.