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.

[john999]

I would file the claim if I were you. You have nothing to lose. If you are denied on the CUE at the VARO then appeal it. You can always hire a lawyer later if you are denied and take it all the way. SMC K for 41 years is a lot of retro if you can get it. You can have a very good claim for CUE, and if there are forty years of retro the VA may deny it. This is why there is an appeals system.

[Philip Rogers]

Yes, it is a hoot but all of us, here, who know you, know you gotta a lotta b*lls, so it is good you are helping. As for the measurement, I believe the "1 cm" is a measurement and would be a factual basis for an SMC decision. The only issue I see is what SMC rules were in effect at the time. Other than that I see a CUE and if they argue the measurement thing, then I'd CUE it for an improper/faulty exam. jmo

pr

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