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steve&pat

Thinking Of Filing A Cue To 1971

Question

I came across this first rating decision of 2-2-71 that has this printed note on the top--

(for the veterans vasomotor rhinitis,because it cannot be distinguished from his sinusitis which was incurred in service.S/C for both ---then goes on to say service connection is denied for the ulcer of the nasal septum , because it was first noted after service.

10/1/ 70 I got out of service I believe the C/P was 1/5/71

I was only recieving 10% at that time so this could add another 10 % or more.

This wasnt even 4 months after discharge.Didnt go to 100% till 1994

A lot of this first rating was screwed up. THOUGHTS

thanks STEVE

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I will say it again ... I don't believe you have a Clear and Unmistakable Error (CUE) because:

S/C for both . So, you are telling me that you have in point of fact been service connected for both sinusitis and vasomotor rhinitis since this Rating Decision in 1971... is that correct?

I asked you earlier what was the percentage of obstruction noted in the C&P of 1/5/71 but you did not provide it. So, what was the amount of nasal obstruction from polyps at that time? Likely, there were no polyps or obstruction noted ... is that correct?

So, both sinusitis and vasomotor rhinitis were service connected and incorporated into one issue because the rhinitis was not separately ratable. However, that does not mean that rhinitis wasn't service connected (which appears to be the case from your statements), and that it couldn't have been broken out into a separate issue if or when it became separately ratable.

Apparently, the nasal septal ulcer was addressed and denied. You had one year to appeal that decision ... did you?

And, when you did develop nasal polyps sufficient for the 10% you seek, did you file a claim for increase?

I came across this first rating decision of 2-2-71 that has this printed note on the top--

(for the veterans vasomotor rhinitis,because it cannot be distinguished from his sinusitis which was incurred in service.S/C for both ---then goes on to say service connection is denied for the ulcer of the nasal septum , because it was first noted after service.

10/1/ 70 I got out of service I believe the C/P was 1/5/71

I was only recieving 10% at that time so this could add another 10 % or more.

This wasnt even 4 months after discharge.Didnt go to 100% till 1994

A lot of this first rating was screwed up. THOUGHTS

thanks STEVE

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If you will note this was the FIRST RATING DECISION WITHIN 3 MONTHS OF GETTING OUT OF THE NAVY.C&P and RATING.

POINT OF FACT__S/C for both .

( So, you are telling me that you have in point of fact been service connected for both sinusitis and vasomotor rhinitis since this Rating Decision in 1971... is that correct?)

THE RATING FOR sinusitis and vasomotor rhinitis ARE SEPERATE ratings .

And the ulcer is a leftover from continued polyp growth and ulceration starting in GUAM in 1967 & continuing there on.

And as expected the VA did not offer the complete SMRs from service .I think I got them all now last year from NARA .

6513 maxillary sinusitis

6501 vasomotor rhinitis

STEVE

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Interested...

There are many "legal theories" to which a Veteran can allege CUE. One example is that the Veteran be given notice of his appeal rights. Under some circumstances, if the Veteran is not given notice of his appeal rights, then that is CUE.

Since it is highly unlikely that you even know whether or not this Veteran was given notice of his appeal rights, your opinion that there was no CUE is "mere speculation". Of course there are other possible "CUE" errors in this Veterans file. Sometimes the "Cue" is what the Veteran thought it may be, while others the "Cue" error(s) was uncovered by an attorney for the Veteran which resulted in retro for the Veteran, after much research.

I prefer that we "err in favor of the Veteran". That would mean that SEVERAL experienced professionals look over the Veterans claim to see if there was a possibility of CUE. Only after several law firms have reviewed the complete file, would I recommend any Veteran abandon his possibility for CUE retro of this magnitude.

Many a Veteran has read over his file dozens of times only to find someone else locate that "Cue error". Cue is often not what the layperson thinks it is. If you dont know exactly what a "Cue" is, you could be looking at one and not even know it.

Steve and Pat: Take your C file to an experienced VA lawyer and ask their opinion. If they say no, then take it to another law firm. Only after you have had at least 3 law firms say you have no case should you consider abandoning your claim. JMHO. Many a Vet has won their claim that their VSO, or someone else said it was useless. I am in that category.

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No matter what you might think, I am not your enemy.

If you will note this was the FIRST RATING DECISION WITHIN 3 MONTHS OF GETTING OUT OF THE NAVY.C&P and RATING.

POINT OF FACT__S/C for both . And my response is ... yeah? So? What does this signify, that is, what specific point are you trying to make?

THE RATING FOR sinusitis and vasomotor rhinitis ARE SEPERATE ratings . No kidding ... really? So what? Actually, you are not service connected for a Diagnostic Code but for a condition and the resulting disability; the narrative or description of the condition is far more important. The DC, in some instances, can or must be chosen to evaluate the condition most accurately.

If vasomotor rhinitis were your only service connected nasal condition and the VAE showed no polyps or obstruction (even though you state there was a nasal septal ulcer), it would be appropriate to apply DC 6501 and assign a 0%.

However, you appear to have two service connected nasal/respiratory conditions which were service connected and combined into one narrative, for example, "Maxillary sinusitis with vasomotor rhinitis" because the sinusitis was ratable at 10% under DC 6513 and the rhinitis was a 0% under 6501. With the above narrative example, you ARE service connected for both sinusitis and vasomotor rhinitis, no matter what Diagnostic Code is used.

Then, if obstructive polyps develop at some later date, you could apply for increased compensation and the vasomotor rhinitis would then be broken out as a separate line item, and the 10% assigned if appropriate.

I have seen similar claims addressed in two ways, that is, sinusitis and rhinitis as one issue, or sinusitis and rhinitis as two issues. I suspect this might be for for widget counting purposes, for example, an RVSR would create a separate issue for rhinitis if separating the two results in 8 issues on the claim versus 7 issues. Eight rated issues results in one "point" toward production, whereas 7 issues rated results in only 1/2 point.

I'm basing this on what you've written and with only what information you've chosen to share. From what you've written, it does not appear to me that you have a basis for a CUE; there could be another issue but I am not sure whether it would result in any additional compensation. However, you are certainly entitled to file a CUE if you so desire; I shan't repeat my earlier comments because those seemed to get a whole lotta folks' panties all bunched up.

If you will note this was the FIRST RATING DECISION WITHIN 3 MONTHS OF GETTING OUT OF THE NAVY.C&P and RATING.

POINT OF FACT__S/C for both .

( So, you are telling me that you have in point of fact been service connected for both sinusitis and vasomotor rhinitis since this Rating Decision in 1971... is that correct?)

THE RATING FOR sinusitis and vasomotor rhinitis ARE SEPERATE ratings .

And the ulcer is a leftover from continued polyp growth and ulceration starting in GUAM in 1967 & continuing there on.

And as expected the VA did not offer the complete SMRs from service .I think I got them all now last year from NARA .

6513 maxillary sinusitis

6501 vasomotor rhinitis

STEVE

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