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Is This A Possible Cue For An Earlier Effective Date Back To 9/19/1970 ?

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USMC RECON 67

Question

First I will thank you for your service and the assistance you offer us veterans with our claims. I filed a claim in 1970 for Epididymitis and was service connected under diagnostic code 7599-7523 and was given a "0" percent rating as per 38CFR.

One code is for urinary infection and the other is Epididymitis with atrophy of left testicle, service connected, Vietnam era, incurred. I was released from service on Sept 19, 1970 and filed my claims.

In my rating decision it states "Veteran had epididymitis January of 1968 which should have read January of 1969, treated at Bethesda Naval Hospital. On EXAMINATION his right testicle is normal, his left testicle is atrophic and approximately 1 cm in diameter. It is non-tender on examination.That was the decision I received in Jan of 1971. Not knowing anything about the claims process I did not appeal that decision for SMC K, loss of a creative organ. Lets face it my attitude wasn't the greatest back then. I was turned down for hearing loss, which was later awarded at 50%,labyrinthine vestibulistis at 30% and tinnitus at 10%.

To make a long story short I reapplied in March of 2011 for erectile dysfunction due to medication from prescriptions I was taking from a heart condition, ptsd and other disabilities. I amended my claim and included loss of a creative organ. I was awarded SMC K based on the loss of use of a creative organ because the left testicle was measured as being 1/3 the size of the normal testicle. Should I have not been considered for SMC K in 1970 if the measurements had been done correctly? It is noted that that the Diagnostic Code 7523 contains a "Note" indicating that the evaluation assigned is to be reviewed for entitlement to special monthly compensation under 38 C.F.R. 3.350

Thank you in advance for your replies. Could this be a basis for an inadequate C&P exam?

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  • HadIt.com Elder

I would certainly give it a try, but that's just me. I believe the VA made a great deal of errors "back in the day," especially since they were dealing w/the VN era, w/WWII and Korea people(ie: adjudicators). jmo

pr

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"Should I have not been considered for SMC K in 1970 if the measurements had been done correctly? It is noted that that the Diagnostic Code 7523 contains a "Note" indicating that the evaluation assigned is to be reviewed for entitlement to special monthly compensation under 38 C.F.R. 3.350"

You have a possible CUE potential.

Do you still have that older decision?

It depends on the rating schedule in 1970 compared to the 1970 C & P results.

The BVA has this condition with ratings in decisions and I was hoping to see if the diagnostic code or schedule of ratings in recent decisions had changed since whatever they used in 1970.

But we got 12 inches of snow last night and I have lost power once already today ,and am having sattelite dish access problems due to the weather, I could not access the BVA site but I know they have some decisions there on this condition.

If you go to the BVA web site, and put your condition into the search feature, decision for the same condition will pop up.

We have considerable info here on CUE.

A CUE claim cannot be based on a C & P exam. A CUE ,in your case ,might have occurred if the documented and established medical record warranted a higher rating then the SC "0" based on the VA Schedule of Ratings at that time.

Also the Schedule of Ratings here at hadit might well have the diagnostic code for your condition ,with a historic date in the regulations that might not have changed since 1970.

Even if the CUE would only warrant 10% if successful, that 10% adds up over the years so if there is any chance the 1970 rating was wrong, I sure would file the CUE if I were you.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Berta,

Thanks for your reply. Sorry to hear about all that snow. Yes I have my rating decision from 1970 plus medical records also. I am not asking for a higher rating as far as % goes but for SMC K from 1970. If I am not mistaken the rating schedule has not changed as far as SMC K is concerned. If one testicle is 1/3 the size of the normal testicle, then loss of use of a creative organ is granted which showed up on my C&P exam in July of 2011. In the rating decision dated August 25th, 2011 it states and I quote " Rating Decision dated January 12, 1971 granted service connection for atrophy of the left testicle at 0 percent. The examination completed at that time noted the diameter of your left testicle was 1 centimeter and the right was of normal size. There was no mention of whether or not your atrophic testicle was one third the size or less or your normal right testicle". I had no episodes after that and the consistency of the testicles have not changed to my knowledge over the years.

The diagnostic codes have not changed since 1970 and were probably based on the 1945 Code of Federal Regulation. Is it possible that the rater included that paragraph concerning the 1971 decision so I could appeal? How would I proceed to write an appeal? Thanks.

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This BVA decision contains the rating schedule epididymitis:

“The Veteran's service-connected epididymitis has been rated by

the RO under the provisions of Diagnostic Code 7525. Under this

regulatory provision, epididymitis is rated as a urinary tract

infection. A 10 percent evaluation may be assigned when the

disability requires long term drug therapy, 1-2 hospitalizations

per year and/or requiring intermittent intensive management. A

30 percent rating is assigned for

recurrent symptomatic infection requiring drainage, frequent

hospitalization (greater than 2 times/year), and/or requiring

continuous intensive management. 38 C.F.R. § 4.115b, Diagnostic

Code 7525 (2009). “

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files4/1032689.txt

I agree that it probably has not changed in decades. I don't see any testicle measurement criteria in the regulations.

If the established medical evidence that VA had when they made the prior decision would warrant a compensable rating,per the rating schedule, then this is a decision that cannot be appealed because the appellate period is over.

But a CUE claim can be filed instead.

This BVA case shows how codes 7525 and 7523 were utilized by the US CAVC to see if the VA had used the wrong code.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp05/Files1/0506944.txt

You added to your post:

“I am not asking for a higher rating as far as % goes but for SMC K from 1970.”

A CUE claim can only be valid unless it involves a legal error that denied a veteran compensation.That is what the 'manifested altered outcome' of the CUE regulations mean.

If you do not have medical evidence ,established at time of the past decision,that warranted the higher level of rating at that time, then there was no CUE in that decision.

SMC is not awarded unless there is a compensable rating.(10% or greater)

If you DO have past medical evidence that was also in VA's possession at time of the 0 % SC decision,that warranted at least a 10% rating,

then you have a basis for a CUE claim.

I cant tell from your post but I hope you have your medical records from that time period because maybe the VA missed something critical to the rating.

The BVA decisions above show what evidence the VA is looking for in this type of claim.

I think my CUE claim is in our CUE forum as a template.

I will bump it up there.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Maybe this will help as my 2004 CUE template.

It regarded:

Final unappealed 1997 decision.

Legal errors on VA's part defined in the CUE claim.

Other legal evidence.

Established medical evidence in VA's possession at time of alleged CUE ( FTCA and Section 1151 Medical reports and VA medical records from August 1988 to Oct 1994)

Manifested altered outcome. They owed me some cash (CUE awarded January 2012, SMC accrued)

Edited by Berta

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Berta is very good at this, and she has given you good advice. I would add two things:

1. First, it may not be necessary to win CUE to get an EED. One example of this is if SMR's were missing, but found later. See 38 CFR 3.156 C http://cfr.vlex.com/vid/3-156-new-and-material-evidence-19776250

2. Next, there are multiple possible Cue Theories, and yours is just one of these. An experienced Vets attorney, or even VSO or others may well notice other Cue theories that could entitle you to an EED.

So, I would surely suggest taking Berta's advice, however, regardless, I would take your claim to an experience person and see if they see "Cue theories" that you may have missed..

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