Chances Of Winning Cue Based On A Well Grounded Claim

[Shyne-I]

Hi Everyone,

Could anyone tell me if I could possibly claim a CUE for the denial of service connection for headaches based on the fact that I believe that the claim is well grounded.

A well-grounded claim is a plausile claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A $5107(a). Murphy v. Derwinski, 1 Vet. App. 78,81(1990).

My service medical records do show treatment for headaches and I also reported sinus headache on my VA examination. My concern or argument would be that I complained of headaches in service as a part of a constellation of complaints and a specific disorder manifest by headaches were never diagnosed before a July 1994 assessment of tension headaches. There was also complaints of frequent tension headaches noted on my separation examination. The 1995 VA examination shows my complaint of sinus headache and the diagnoses were mild frontal sinusitis, history of UTI, and sinus headaches. With using this a my contention for a CUE, does anyone think that I have a chance of winning? I was also thinking about the fact that they did not supply me with a statement in the Reason and Bases section as to why it was not a well grounded claim. Any thoughts or opinions??

ISSUE:

1. Service connection for sinusitis.

2. Whether the claim for headaches, and urinary tract infection is well grounded.

EVIDENCE:

Service Medical Records November 1993 to November 1994

VA Examination dated 02-17-95 from VA Medical Center Lake City FL.

DECISION:

1. Service connection for sinusitis is granted with a 0 percent (noncompensable) evaluation assigned.

2. The claim for headaches, and urinary tract infection is not well grounded.

REASONS AND BASES:

The veteran contends that service connection should be granted for headaches, sinus condition, and urinary tract infection, based on onset of the conditions during service.

Service medical records were reviewed and considered. Enlistment examination 11-18-93, noted no abnormal findings regarding claimed conditions.

The veteran was evaluated in March 1994 for complaint of sinus congestion. Assessment was upper respiratory infection. Evaluation in July 1994 noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches. Evaluation in August 1994 noted complaints of headaches and slight ear pain. Examination noted right maxillary sinus tenderness. Assessment was allergies.

The veteran was evaluated in July 1994 for complaint of headaches. Assessment was tension headaches.

Service medical records indicate treatment for a urinary tract infection in May 1994.

Separation examination 11-18-94, noted history of frequent tension headaches and frequent sinus infections.

The report of the VA examination 02-17-95 was received. The veteran complained of sinus headache, chronic sinus problems, and post-nasal drip with sore throat. She reported that this condition has existed since 1993. She also gives history of upper urinary tract infection in May 1994 that resolved with treatment.

VA examination noted the following: There was some slight tenderness over the right maxillary sinus and right frontal sinus area. The nasal passages were slightly congested. X-ray examination of the sinuses showed clouding of the frontal sinuses suggestive of frontal sinusitis. Urinalysis was normal. Diagnoses were mild frontal sinusitis, history of urinary tract infection, and sinus headache.

Service connection for sinusitis.

Service connection is granted for sinusitis as the evidence shos onset of the condition(s) during military service.

[jbasser]

The term not well grounded was grounded by the VA with the VCAA in 2000. in order to prove a CUE you must show the VA that is made a legal error so obvious that reasonable minds would agree and that the bogus decision must have caused you harm. (Cost you money)

I would advise you to let an attorney look at it first to see if you have a case. Keep in mind that all decisions will be based on the regulations in effect at the time of the original decision.

Also you need an IMO with a statement that the condition was at least as likely as not related to your service since you were treated for Headaches in service and have post service treatment also. That makes it a chronic condition.

Basser

[Shyne-I]

Basser,

I have been doing some reasearch of CUE claims as well as claims for headaches, and claims not well grounded. One case in particular peaked my interest. The veteran was trying to get a TDIU approved by stating the his sinusitis with headaches caused sever impairment. What I found interesting about this case is the way the VA approached it or classified his claim.

Basically they granted service connection for sinusitis with headaches at a noncompensable evaluation in accordance with 38 C.F.R. Part 4, Diagnostic Codes 8100 and 6514, based on findings in service as well as on an initial post service examination in January 1991. An RO rating decision in August 1993 granted a 10 percent evaluation based upon associated headaches consistent with moderate sinusitis. Back then the the Diagnostic Code 6513 stated that chronic sphenoid sinusitis productive of moderate impairment with manifestations of discharge or crusting or scabbing with infrequent headaches, a 10 percent evaluation is warranted. For severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence, a 30 percent evaluation is warranted.

I thought this was interesting because even though the Diagnostic Code makes references that headaches were a part of the criteria for sinusitis, they gave him a separate diagnostic code of 8100 as well, which is for Migraines. You would think based on the information in my case above that I would have had at least a plausible claim for headaches based on my SMR's, even if they considered the headaches as part of my sinusitis claim, I should have received at least a 10 or percent evaluation for my sinusitis because of the headaches.

I am currently seeing a Neurologist who told me that he believes that the headaches that I had during service were migraine headaches. I'm afraid that if I get him to write my IMO that the VA will say that the diagnosis has changed and then I wouldn't be able to receive any retro pay. I don't know which way to approach this...any ideas?

[carlie]

If you submit a claim for CUE that was made on a decision

that denied, due to NWG - it will be denied.

JMHO

[jbasser]

The Cue that I see here is not what you are seeing.

If they denied you and you were eventually awarded based on service department records, even though they were previously denied, you may have a case under 3.156C. That would be legal error.

You should run this by an experienced attorney like Bergmann - Moore. They could help you with this.

Basser

[carlie]

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=84c1fc389492d6b6ff298e2573eb9203&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.65&idno=38

3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence.

New evidence means existing evidence not previously submitted to agency decisionmakers.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record,

relates to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Cross References: Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

[zeza]

Do I have the basis file and win a CUE claim? A VARO I filed my claim with forwarded my claim to another states' VARO. It states claim was denied because I failed to appear for C&P exams in a state I was not living in at the time.