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!!

[Shyne-I]

Berta,

The claim in Waco is not related to the CUE, it is for Fibromyalgia, depression secondary to Fibromyalgia and TDUI. It was denied on April 10th of this year but was under an administrative review starting on 4/30 of this year. While it was under Administrative review, I submitted seven more years on my medical records that I thought were lost, so it has been reopened and is currently in the gathering of evidence phase as of today. I was sent a 5103 waiver which is under "What we need from a 3rd party" as well as they have requested my entire personnel record as of 7/8 from a 3rd party. I don't know why they have requested my entire personnel record....unless it's because I recently started receiving medical treatment from the VA??? The increase in sinusitis was originally part of this claim, but they granted the increase to 10 percent in August of last year.

[broncovet]

If its possible to switch this from a CUE to a 38 cfr 3.156, then I would suggest you do just that.

Under Bell, the Va has "constructively received" the evidence even if they didn't actually have it at the time.

If the VA did not consider your evidence, then you can "lower the (CUE) bar" by reopening due to N and M evidence, and still win an EED, without meeting more stringent Cue standards.

[Shyne-I]

Bronco,

How far back would they go for an EED? Would it be the original claim date on 5/15/1995?

[broncovet]

38 CFR 3.156 does not have a "time limit", so, yes, if you applied in 1995, and you can show the VA lost but then found your evidence, per the regulation, then there is nothing that says you should not get a 1995 effective date.

You are going to need to show:

1. That you applied in 1995, that you had the malady in 1995 (The effective date is the later of the "facts found" or the date you applied), and that you did your part on helping the Va find your records, dating back to 1995. Read this regulation over carefully, it could be a huge retro check for you if you have possible 1995 retro.

[john999]

If it was me I would file my cue or 38CFR 3. 156 soon so you can hire a lawyer once you get denied. The VA does not want to give you 20 years of retro without a fight. The lawyer will know which avenue to take and the exact language to use. I did this with my cue and it is still sitting with a CAVC judge seven years later.

[Shyne-I]

I guess that I will just wait until my current claim is decided, I don't want to slow it down any more at this point!! Once it is completed, I will take it to my VSO and see what he suggests.

Thanks everyone for your help and experience!!