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

[carlie]

Then I wondered If I did wrong and should have CUE'd.

Michellee,

Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.

The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.

[Berta]

I could write book on the VCAA.We were all given enhanced DTA regs in 2000 (the VCAA) and then VA manipulated in some cases-what we got.In 2009 I even asked Congressman Filner to support an amendment I wrote to the VCAA. (I told him by phone the VA had turned this DTA reg into a Scam.The Annual Chairman of the BVA's reports revealed exactly what I meant.)But my idea for amendment didn't get anywhere. Things have changed anyhow regarding the VCAA.

The VCAA started out as a positive step but allowed the VA in turn to set up countless time consuming remands over VCAA errors and this is what I believe was the fundamental cause of the backlog.Almost every BVA decision shows the BVA looked over the VCAA letter carefully to see if anything possibly prejudicial had occurred within it.It so,the claim ad to be remanded back to the RO AOJ.

Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

This bears repeating and thanks for stating this:

“In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.

The very first statement of argument in my I-9 regarding my past AO claim was that the VA had violated the VCAA to my detriment and I stated how and enclosed copy of the VCAA letter I had received. (it was so bad I a angry as I type this and it supports my mantra that many raters cannot read. These VCAA letters have to be carefully read over by the veteran (or widow) and their POA .Most are now and the remands due to VCAA violations at the BVA has sure calmed down.

I asked the BVA for immediate remand due to this VCAA violation causing deficiencies in the SOC,and SSOC I received.The BVA agreed:

.”The Board notes that the claimant has not waived

consideration by the agency of original jurisdiction, and has

in fact stated that, in light of the failure to consider all

the evidence of record, a remand would be required. The

Board agrees. A remand is required to ensure that this

evidence has been fully and fairly considered at the RO

level.”

The VCAA was still violated again by the RO in my case on remand and the deficiencies now involved the AMC and another RO's SOC but when it returned to the BVA, my probative evidence had mitigated the damages and BVA awarded anyhow.

During this period my vet rep, and his boss, and then even the director of my state POA told me I was wrong on the VCAA violation. I filed complaint with the General Counsel against them and am satisfied with the results that had.

As Rakk said here:

“in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A. “

You are 1,000% CORRECT here of course and I am glad the VCAA is in this topic because ,if errors are made in the VCAA letter to the vet's detriment, they can certainly cause a denial that might not be warranted.The appellant has the burden to show the error was harmful.Unless the BVA picks up the error.

The only evidence I needed for that was to send the BVA the VCAA letter I got It was disgraceful.My Soc and SSOC revealed it's prejudicial damage.

In my BVA award it states:

The Veterans Claims Assistance Act of 2000 (VCAA) and

implementing regulations impose obligations on VA to provide

claimants with notice and assistance. 38 U.S.C.A. §§ 5102,

5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§

3.102, 3.156(a), 3.159, 3.326(a) (2008).

The VCAA is not applicable where further assistance would not

aid the appellant in substantiating her claim. Wensch v.

Principi, 15 Vet App 362 (2001); see

38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide

assistance "if no reasonable possibility exists that such

assistance would aid in substantiating the claim"). In view

of the Board's favorable decision in this appeal, further

assistance is unnecessary to aid the appellant in

substantiating her claim.”

You bet it was -I wrote my own little VCAA letter to myself and complied with it. I knew what evidence they needed to award the claim , what the award should be and what the EED was.It took 7 years due to this VCAA violation that caused deficiencies in the SOC, SSOC which my VARO refused to correct and which my POA refused to acknowledge.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.

I am glad the topic of VCAA came up here as we haven't discussed the VCAA in a long time.

While most VCAA letters today are proper and compliant with the VCAA regs, any detrimental error in the VCAA letter could potentially cause a denial and yet a reasonable possibility could exist that such

assistance would aid in substantiating the claim.(but for the prejudicial error)

I asked NVLSP lawyer if the VCAA could be waived for the new AO claims that are obvious awards -ie: the vet was incountry and the vet had documented diagnosis of one o the new AO presumptives but he said VA could never waive the VCAA.

I dont know about anyone else here but I never received VCAA letter on my new IHD claim and they said they have enough to decide it within 30 days depending on a response I have to send in by next week.

I think VA is waiving the VCAA in some new AO claims.

Edited March 26, 2011 by Berta

[Berta]

NVLSP has this undated statement under the VCAA at their web site:

"The VCAA also gives individuals two years from November 9, 2000, to request that VA readjudicate claims denied as not well grounded which became final between July 14, 1999 and November 9, 2000. These claimants are advised to immediately contact their representative (usually a service officer). Requests for readjudication should promptly be filed with the local VA regional office. "

http://www.nvlsp.org/Information/ArticleLibrary/VABenefits/VETBEN-CLAIMSHELP.htm

Unfortunately I guess the VCAA tactic will not work in Michellees case here.

The actual rating sheet (the one they used to send to NSOs and reps -which the veteran didnt get in those days (1998))

in your c file -might reveal a potential legal error as basis for CUE.

[carlie]

Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.

Berta,

That's the way I'm understanding the denial also - from the get-go her cervical (neck) was denied as NWG.

I too sure wish you had submitted a Waiver Of Regional Office Consideration, (most of the veterans/claimants community

may not have even been very aware of the Waiver at that time) but you continued to have faith in them.

Most of us know, that many of them are still learning how to read and properly apply the evidence : - )

[Michellee]

Michellee,

Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.

The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.

Thank you so much Carlie for your help. Clarification is that I just sent the claim in Jan 2011 to reopen by writing a formal letter and stating such. I believe now what I should have done was file a CUE instead. Hope that's clear. Like I said before they already called me the other day or yesterday whenever I mention it. I was surprise and thankful that they were looking at so quickly. But its not over so I will be using this format. Thx.

Remember either way I need to get it service connected for sure and the fact that "I filed for this a few months after my medical board" it was claimed during the presumptive period. I found this and found this case very interesting and similar.

check this out. http://www.va.gov/ve...es3/0515336.txt

the question in my mind has been do I CUE or simple reopen and lose the original dates.

I found these quotes interesting in that case that spelled out to me that I had an inkling of a chance to reopen. Still don't believe they bothered to look at the accident report/evidence. Then years later they did for my lower back my mistake was I didn't reopen for the neck.

"I. Pertinent laws and regulations.

To establish service connection for a claimed disability, the

facts, as shown by the evidence, must demonstrate that a

particular disease or injury resulting in current disability

was incurred during active service. See 38 U.S.C.A. §§ 1110,

1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease

is first diagnosed after service, service connection may

nevertheless be established by evidence demonstrating that

the disease was in fact incurred during the veteran's

service, or by evidence that a presumption period applied.

See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).

"Generally, to prove service connection, a claimant must

submit (1) medical evidence of a current disability, (2)

medical evidence, or in certain circumstances lay testimony,

of in-service incurrence or aggravation of an injury or

disease, and (3) medical evidence of a nexus between the

current disability and the in-service disease or injury."

See Pond v. West, 12 Vet. App. 341, 346 (1999); see also

Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively,

under 38 C.F.R. § 3.303(b), service connection may be awarded

for a "chronic" condition when: (1) a chronic disease

manifests itself and is identified as such in service (or

within the presumption period under 38 C.F.R. § 3.307) and

the veteran presently has the same condition; or (2) a

disease manifests itself during service (or during the

presumptive period), but is not identified until later, and

there is a showing of continuity of related symptomatology

after discharge, and medical evidence relates that

symptomatology to the veteran's present condition. Savage v.

Gober, 10 Vet. App. 488, 495-98 (1997).

In the case of a disease only, service connection also may be

established under section 3.303(b) by evidence of (1) the

existence of a chronic disease in service or of a disease,

eligible for presumptive service connection pursuant to

statute or regulation, during the applicable presumption

period; and (2) present disability from it. Savage, 10 Vet.

App. at 495. Either evidence contemporaneous with service or

the presumption period or evidence that is post service or

post presumption period may suffice. Id.

By a decision in January 1997, the Board denied the veteran's

claim of entitlement to service connection for low and mid-

back conditions. When the Board or the RO has disallowed a

claim, it may not thereafter be reopened unless new and

material evidence is submitted. 38 U.S.C.A. § 5108 (West

2002); 38 C.F.R. § 3.156 (2004).

New and material evidence means evidence not previously

submitted to agency decision makers which bears directly and

substantially upon the specific matter under consideration,

which is neither cumulative nor redundant, and which by

itself or in connection with evidence previously assembled is

so significant that it must be considered in order to fairly

decide the merits of the claim. 38 C.F.R. § 3.156(a) (2004);

see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

There was a significant change in the law during the pendency

of this appeal. On November 9, 2000, the President signed

into law the Veterans Claims Assistance Act of 2000 (VCAA),

38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law

redefined the obligations of VA with respect to the duty to

assist, and imposed on VA certain notification requirements.

The final regulations implementing the VCAA were published on

August 29, 2001, and they apply to most claims for benefits

received by VA on or after November 9, 2000, as well as any

claim not decided as of that date, such as the one in the

present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a). "

This case was won by the veteran in the end. Also I plan to request a nexus letter from my PCP on my upcoming appt next week and fax it in as evidence as well. So we will see how this plays out I will keep you all posted.

Edited March 26, 2011 by Michellee

[rakkwarrior]

Request they review you records from service and the complaints and findings of your condition within the presumptive period in accordance with 38 C.F.R. 3.156(c )(4), in the event they did not have the records at the time of the prior decision, additionally request them to consider the application of 3.303(d); 3.307(b); and 3.309(a) as it pertains to your condition.

This should ensure they look at these regulations in context with your condition, which was noted in service and if documented within the first year, should have became compensable to a degree of ten percent or more within a year of leaving service. If this is not definitively shown by the evidence of record there is no CUE, but a medical opinion from your orthopedist (after a review of all relevant records from service, and current clinical findings) regarding your C-spine injury and later degenerative changes stemming from the in-service injury should serve to have the case reopened and unless clearly rebuttable, should end in a grant for the issue as sought.

This advice if reviewed carefully should comport with the Board's reasoning and the legal standard for a grant of benefits.