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!!

[john999]

You can file your cue or other claim for EED and you don't need to worry about losing money. File when you get ready. Your EED won't change.

[Shyne-I]

So John are you saying that you don't that I have a valid CUE?

[Berta]

Shyne, I dont think that was John's point at all......

My SMC CUE claim took 7 years for VA to award.

When one makes a frontal attack on a VA decision, under CUE ,the VA can get pretty creative in their attempts to deny it.

I knew my CUE was valid and well supported by my legal evidence and I knew, as long as I kept it going, the VA would cave in and they did.

Well I shouldnt put it that way.....Buffalo farted around with it for years, and finally set it for a BVA transfer but I got the Nehmer people to decide it, as it preceded and was contingent to my AO IHD claim.

Phila RO didnt really cave it at all... they actually read it, and the regs the VA broke, and saw I was legally right and awarded it in about 3 weeks along with the AO IHD death claim.

There is something wrong with that picture,I know.

By all means if you feel you have a valid CUE or 3.156 issue, John is correct that the EED will not change if you succeed. .

[Shyne-I]

Hi Berta,

I was just asking because in his first comment he said, "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!" I want to make sure that based on what I listed about the assigned rating and regulation broken, that it meets at least a prima facie case...

Thanks,

Shyne

[john999]

You need to read Berta's explanation of what a CUE means. Even if you have prima facie case for cue that does not mean you will win. This is why I say send in your claim and then hire a lawyer who understands the law in detail. Unless your cue is a clerical error the VA is going to dispute it. I won a cue on my housebound SMC because the law clearly stated I was entitled and the VA had missed it. I had the dates, the law, a recent CAVC decision to quote. Others using the same arguments as me have failed? I don't know why. I have another CUE that seems just as clear. I have a lawyer and have been at it for 7 years.

[Shyne-I]

Oh wow ok, well once my other claim is decided. I will do just that!!

Thanks,

Shyne