Is This A Cue Based On Va Failing To Apply The Correct Regulation

[Shyne-I]

Hello Everyone,

I was wondering if anyone can tell me if I have a good chance of winning a CUE based on the following:

I am asking for an earlier effective date of my increase in sinusitis based on a CUE in my May 15,1995 rating decision where in the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts.(See Oppenheimer v. Derwinkski, 1 vet. App. 370,372(1992)). While the RO noted that the condition of sinus headache is considered a symptom of sinusitis, they failed to grant me a compensable rating for sinusitis with headaches. 38CFR 4.97 Diagnostic Codes 6510-6514 the law that existed at the time of the prior adjudication in question includes: Chronic sinusitis with only x-ray manifestations and mild or occasional symptoms warrants a noncompensable rating; moderate symptomatology with discharge or crusting or scabbing with infrequent headaches warrants 10 percent . A 30 percent evaluation is warranted for severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 50 percent evaluation is post operative, following a radical operation with chronic osteomyelitis required repeated curettage, or severe symptoms after repeated operation.

Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity as a result of enumerated disabilities.

38 CFR 4.7 states where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.

The medical evidence of record is as follows:

March 1994 evaluated for complaint of sinus congestion

July 1994 evaluation noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches.

August 1994 evaluation noted complaints of headaches and slight ear pain, examination noted right maxillary sinus tenderness, which required 24 hrs. SIQ.

The separation examination noted history of frequent tension headaches and frequent sinus infections.

VA Examination dated 2/17/95 was reviewed with complaints of sinus headache, chronic sinus problems and post-nasal drip with sore throat. Diagnosis were mild frontal sinusitis, history of UTI, and sinus headaches.

I was assigned a noncompensable rating in May 1995 based on diagnosis of mild frontal sinusitis. My basis for a CUE is that the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. The RO did not correctly apply the facts of the total medical evidence to the correct statutory regulation in 38 CFR 4.97 where my contention is that my symptomatology and disability picture, including the incapacitating episode in August 1994 more nearly approximated the higher rating of at least 10 percent based on 38 CFR 4.7

I would appreciate any and all feedback

Thanks!!

[Berta]

You sure did your homework and have described the exact essence of CUE regarding your past decision rating.

DO you still have that old decision?

For my SMC CUE claim, I laid the legal stuff out for them , as you stated here in your situation, at time of alleged CUE as well as the medical evidence the VA had.

I enclosed a copy of the actual older decision along with the rating sheet with the claim. They need ,if not the actual decision copy, the date of the alleged CUE.And it must be filed with the same entitly (the RO) that made the CUE.

In my case it involved not only wrong diagnostic codes, it involved also a lack of a diagnostic code, for the immediate cause of death disability ( this was all in a DIC award letter and stemmed from my deceased husband's claim,pending at his death ) and also it involved the complete lack of any application of the SMC mandate to the decision, a major legal error which the rating sheet supported.

3 CUEs in the same decision.

You have correctly defined the CUE you are claiming, have the med evidence, which VA also had at time of CUE, and obviously it manifested an altered outcome, ie, they appear to owe you some retro.

No VCAA letter comes when one files a CUE.VA isnt going to assist us to frontally attack them on their legal errors.

You might want to throw in a statement that they violated 38 CFR 4.6 too iIf they ignored evidence you can prove they had, or they ad it but never listed it as evidence in the older decision.

That is the long standing evidentary regulation of VA that establishes one of our most basic rights:

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

I have used the above M21-1MR print out for all of my CUE issues, sent it to VA and then explained how they violated it in my past CUE situations.

GO FOR IT Shyne!!!!!!

[Shyne-I]

Thank you Berta!! ,

I do have the old decision and the Atlanta RO was the author of the decision. I was wondering if I provide them with all the documentation, will filing a CUE with the Atlanta RO, slow my current disability claims down with the Waco RO?(Waco is now my jurisdictional RO and they currently have my claims folder)

[carlie]

Hello Everyone,

I was wondering if anyone can tell me if I have a good chance of winning a CUE based on the following:

I am asking for an earlier effective date of my increase in sinusitis based on a CUE in my May 15,1995 rating decision where in the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts.(See Oppenheimer v. Derwinkski, 1 vet. App. 370,372(1992)). While the RO noted that the condition of sinus headache is considered a symptom of sinusitis, they failed to grant me a compensable rating for sinusitis with headaches. 38CFR 4.97 Diagnostic Codes 6510-6514 the law that existed at the time of the prior adjudication in question includes: Chronic sinusitis with only x-ray manifestations and mild or occasional symptoms warrants a noncompensable rating; moderate symptomatology with discharge or crusting or scabbing with infrequent headaches warrants 10 percent . A 30 percent evaluation is warranted for severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence. A 50 percent evaluation is post operative, following a radical operation with chronic osteomyelitis required repeated curettage, or severe symptoms after repeated operation.

Disability evaluations are determined by application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity as a result of enumerated disabilities.

38 CFR 4.7 states where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.

The medical evidence of record is as follows:

March 1994 evaluated for complaint of sinus congestion

July 1994 evaluation noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches.

August 1994 evaluation noted complaints of headaches and slight ear pain, examination noted right maxillary sinus tenderness, which required 24 hrs. SIQ.

The separation examination noted history of frequent tension headaches and frequent sinus infections.

VA Examination dated 2/17/95 was reviewed with complaints of sinus headache, chronic sinus problems and post-nasal drip with sore throat. Diagnosis were mild frontal sinusitis, history of UTI, and sinus headaches.

I was assigned a noncompensable rating in May 1995 based on diagnosis of mild frontal sinusitis. My basis for a CUE is that the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. The RO did not correctly apply the facts of the total medical evidence to the correct statutory regulation in 38 CFR 4.97 where my contention is that my symptomatology and disability picture, including the incapacitating episode in August 1994 more nearly approximated the higher rating of at least 10 percent based on 38 CFR 4.7

I would appreciate any and all feedback

Thanks!!

You spelled your claim for CUE out very clearly.

Can you post the Reasons and Bases or Narrative from the prior

decision in which you are submitting the claim of CUE on.

[Shyne-I]

Hi Carlie the Reasons and Bases are as follows:

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 the 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 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 reviewed. 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 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.

1. Service connection for sinusitis.

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

In determining evaluations for sinusitis, consideration is given to the frequency and severity of recurrences, and the severity of symptomatology such as headaches, sinus discharge, and crusting or scabbing of the mucous membranes.

The evidence shows mild or occasional symptoms with X-ray evidence of sinusitis which warrants a noncompensable evaluation.

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

Service connection may be granted for a disease which began during active military service or for an injury incurred during active military service or active duty training. Additionally, service connection may be granted for specific diseases or conditions which are, by law, presumed to have been incurred during service if manifested to a compensable degree within a specified period of time, generally, one year. Service connection may also be granted for conditions which existed prior to service if the condition is shown to have been aggravated by service.

The condition of sinus headache is considered a symptom of sinusitis. Service medical records show treatment for a tension headache however, this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation.

Service medical records show treatment for a urinary tract infection however, this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation.

The law provides that a person who submits a claim for VA benefits must submit evidence sufficient to justify a belief that the claim was well grounded. A well grounded claim is a plausible claim, one which has merit on its own, or is capable of substantiation. Such a claim need not be conclusive, but it must be accompanied by evidence. A well grounded claim for service connection must be accompanied by evidence which shows the claimed condition exists and is possibly related to service. A claim that is not well grounded is an incomplete application.

In order to satisfy the requirement of a well grounded claim the veteran must submit medical evidence of treatment of chronic headache condition and urinary tract infections and evidence of treatment subsequent to service to the present time which tends to show the condition(s) still exist. Unless such evidence is received within one year of the date of this notice, no benefits may be awarded based on incomplete application.

Sorry so long Carlie but I wanted to make sure that you had all the information.

Thanks

[Berta]

"I was wondering if I provide them with all the documentation, will filing a CUE with the Atlanta RO, slow my current disability claims down with the Waco RO?(Waco is now my jurisdictional RO and they currently have my claims folder)"

A good question.....I dont know.....

what is the status of the Waco claim and what is it for?

I got Phila RO ( Nehmer) to resolve my SMC CUE claim against a Buffalo RO decision ( and I sent them a copy)along with my AO IHD claim because I told them that CUE was contingent on a proper decision, from them, because VA had never rated or given a DC code to the IHD in any past decision.

Is your CUE claim in any way contingent to the claim you have pending now at Waco?

[john999]

CUE claims are easy for the varo. No real research or records development since it is all there and cannot be added to or detracted from. Also is easy to say NO with the only justification that your claim is not a valid cue.......next!