Is This A Cue Claim?

[USMC RECON 67]

Thanks in advance for your input. In 1970 I put in a claim for Epididymitis with atrophy of the left testicle. I was rated under the following diagnostic codes:

7599 Urinary condition

7523 Epididymitis with atrophy of the left testicle and was given a "0" % rating. My question is should SMC K been awarded since I met the requirements of 3.350 which states 1114 (k) is payable for EACH anatomical LOSS or loss of use of one hand, one foot, both buttocks, OR MORE CREATIVE ORGANS, etc. It also states (1) / Creative organ,/ (i) Loss of a creative organ will be shown by acquired absence of ONE or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that: the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle and other requirements which may be met. Should I have been granted SMC K for that since the requirement was met? It was not a claim for erectile dysfunction but for Epididymitis. Should not the claim for SMC K LOSS OF A Creative ORGAN been an inferred claim since the requirement for 3.350 were met. Thanks for you replys.

[Philip Rogers]

Sounds like it is to me. File the claim!!! jmo

pr

[Berta]

You bet.

Maybe this BVA decision will help you:

http://www.va.gov/vetapp06/Files2/0608726.txt

The vet was denied higher than 20% for his epididimytis but did receive the SMC K award for it.

SMC is an inferred issue whenever the medical evidence warrants it.

[carlie]

Thanks in advance for your input. In 1970 I put in a claim for Epididymitis with atrophy of the left testicle. I was rated under the following diagnostic codes:

7599 Urinary condition

7523 Epididymitis with atrophy of the left testicle and was given a "0" % rating.

My question is should SMC K been awarded since I met the requirements of 3.350 which states 1114 (k) is payable for EACH anatomical LOSS or loss of

use of one hand, one foot, both buttocks, OR MORE CREATIVE ORGANS, etc. It also states (1) / Creative organ,/ (i)

Loss of a creative organ will be shown by acquired absence of ONE or both testicles (other than undescended testicles) or ovaries or other creative organ.

Loss of use of one testicle will be established when examination by a board finds that: the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle and other requirements which may be met.

Should I have been granted SMC K for that since the requirement was met? It was not a claim for erectile dysfunction but for Epididymitis.

Should not the claim for SMC K LOSS OF A Creative ORGAN been an inferred claim since the requirement for 3.350 were met.

Thanks for you replys.

USMC,

What exactly is stated in the narrative of the rating decision, that granted the SC at zero percent ?

Did the rating decision mention anything more in depth than "atrophy of the left testicle", in regards to

any measurement ?

Did the decision mention anything at all in regards to SMC ?

Did it refer to the C&P in anyway or did it mention if any measurement of the testicle had been done ?

Do you have a copy of that C&P and does it show any measurement of the testicle ?

This is only my opinion : "atrophy of the testicle" is not a measurement.

If there were no measurements of record for the testicle showing a comparable reduction of one-third, then the

"requirement" had not been met and there would be no reason for the decision maker to infer SMC.

Perhaps the decision maker should have returned the C&P exam as inadequate

for rating purposes and if this wasn't done, it resulted in a poor decision as the evaluation was at zero percent

and no consideration was provided for SMC.

I guess the only other question I have would be in regards to a CUE.

Is a CUE for consideration on an issue that could/should have been inferred ?

I'm thinking that if SMC had never been inferred or considered in the 70's rating decision -

then (at the time) there was no claim for SMC of record -

so how would a request for the issue of CUE be supported ?

Also, below is a BVA link I found, that I liked for your issue.

http://www.va.gov/vetapp92/files3/9223669.txt

It is the further decision of the Board that a preponderance of the evidence is against the claim for a compensable rating for atrophy of

the right testicle. It is the further decision of the Board that the evidence supports an award of special monthly

compensation for loss of use of a creative organ.

[Berta]

"I guess the only other question I have would be in regards to a CUE.

Is a CUE for consideration on an issue that could/should have been inferred ?"

That is a good question Carlie.

It is the basis of the 2 CUE claims I filed n 2004 which were sent to Nehmer People along with my AO IHD claim.

At time of those CUEs the SMC issues fell under Section 1151 award but were never considered along with my husband's 100% P & T PTSD award.

Then last year they became directly SCed by the BVA but still no posthumous SMC award.So I Nodded that award letter.

Then the AO IHD regs changed everything-

I proposed to the VA (since they sent the CUE claims to Nehmer Division) that these Claims are now rendered moot IF the AO award is proper and considers ALL of my husbands AO disabilities.(which would become a posthumous SMC award anyhow)

My claim was filed a year ago tomorrow and Nehmer in Phila RO only asked me for one additional document and said it has been ready to rate since April.

I am hoping that the SMC is not ignored no that I can determine how they would consider the legal evidence I had sent in support of the CUE claims.

In many denials (yet still at VARO level) the VA said that the veteran had not asked for SMC and thus this is why they denied.

I rebutted with the Regs that define SMC as a statutory benefit and told them that no where in any reg does it say a veteran has to "ask " for SMC as, if the medical evidence warrants it, it is an inferred issue that overcomes any specific need to request this benefit.

I have what I consider probative evidence for my CUE issues.

But then again 2 of the SMC issues were major part of my FTCA and 1151 case so I think this is why VA dragged out the CUE claims so long.

Now that I have proof of direct SC disablities under AO (my BVA award) they might completely ignore my CUEs as the AO aspect trumps it all.

I was hoping when this issue gets resolved -but do feel it will be rendered moot-if it does get any mention in the decision, Ito have something to share here regarding the type of CUEs I had.

Another problem that VA could have denied on (but so far hasn't) is that it is possible they did not have, at the RO, the paperwork from the OGC at time of the decisions I cued.

They havent raised that issue yet at all and the regs clearly say that as long as my evidence was in VA's possession ( regardless of what part of VA that was)then the evidence was of record at time of alleged RO CUE.

CUE is a difficult standard to meet but I feel one should not hesitate to file a CUE claim if they feel they can get into the CUE criteria.

Also if the BVA denies a CUE claim "with prejudice"-this means the vet can reword the CUE and file it again.

[USMC RECON 67]

Carlie,

Thanks for your reply.The rating decision is as follows:

In Dec. of 1968 this veteran was treated for epididymitis with frequency of urination, left testicle swollen and tender, and the prostate enlarged and tender. Examination at discharge, is not of record. VA examination reveals the right testicle is normal but the left tedticle is atrophic and approximately 1 cm in diameter but is non tender.

There is no mention of the size of the right testicle in the report or comparison of the left to the right.

The left testicle no longer exists. it has disappeared.

No mention of SMC in the rating decision.

I did not file an NOD. Like so many others I was fed up with the VA.

Carlie, thanks for being a moderator.

You are right, atrophy of the testicle is not a measurement but a condition that exists.

[carlie]

Carlie,

Thanks for your reply.The rating decision is as follows:

In Dec. of 1968 this veteran was treated for epididymitis with frequency of urination,

left testicle swollen and tender, and the prostate enlarged and tender.

Examination at discharge, is not of record.

VA examination reveals the right testicle is normal

but the left tedticle is atrophic and approximately 1 cm in diameter but is non tender.

There is no mention of the size of the right testicle in the report or comparison of the left to the right.

The left testicle no longer exists. it has disappeared.

No mention of SMC in the rating decision.

I did not file an NOD. Like so many others I was fed up with the VA.

Carlie, thanks for being a moderator.

You are right, atrophy of the testicle is not a measurement but a condition that exists.

USMC,

Not at all making lite of your issue, many here know that it's a real a hoot - for me to be

researching issues regarding testicle's, but I'm just trying to help out.

With my limited knowledge on the average size of testicle's, even I would speculate that

an atrophic testicle that only measures 1 cm would be considered out of the normal range

when the other testicle is opined on as "normal".

I do certainly feel that the SMC should have been inferred (due to the 1cm measurement) and adjudicated

but this might also be dependent on if the reg read differently, when the prior rating was adjudicated.

Another thing is that what you posted above reads to me like it came from the rating decision itself,

personally, I would want to see the C&P and/or any additional medical progress notes of record from that time period.

I would look at the evidence section and find the VA examination they referred to and see for myself exactly what it states.

Many - many - many - many - many - many - times, (did I point out many - lol), the rating decision only refers to

the part of evidence that supports their denial (or in this instance - non-adjudication) of an issue.

Then if we take the time to read the actual piece of evidence they refer to in the rating decision, we see that it actually

states something that is different or that it states something MORE - that is not mentioned in the actual

rating decision.

Also, I do want to be clear that I am not even suggesting that I would not file for a CUE,

I am wondering exactly HOW to word the filing for a CUE.

If it were worded for non-adjudication of SMC, I do not see that would work.

EED for SMC - I just don't know.

I hope other's come in and post on this.

JMHO

I'm editing this to add - maybe do a BVA search for cue+inferred smc