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HadIt.com Anniversary 24 years on Jan 20, 2021
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Fixing Previous Claims And Appeals Due To Inadequate C&p Exams And Cues


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I was discharged Nov1995 and Finally got my BVA decided in the Fall of 2008. My VSO was The American Legion and at the end they sent me a letter stating that they had help me as much as possible.

I had surgery on my right knee in Aug 2012 and decided that would be a good time to file for an increase. After going through the Georgia Dept of Veterans Services and filing my claim, I began researching here and in other fourms.

What I found amazes me. Yes,The American Legion did a good job but at the same time, they really blew it.

In making their decission, The BVA relied on information from an inadequate C&P Exam. Plus, they (The BVA) changes the wording of the C&P examiner from within to without:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability.”
To:
“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but without any neurological disability.”
This completely changed the meaning of the examiners statement. The word “within” used in this particular situation meant to include or encompass all of the neurological disability, in this case bilateral spinal stenosis to the L/S strain and degenerative arthritis.
The BVA decission also stated in conjuction with my Left Knee Claim:
"appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)."
Last week, I had surgery on my Left Knee. I do not have as of yet, a post-op report from the doctor. According to my wife, the doctor stated that most of the damage in my left knee was the result of an old injury. The only injury that I have had to my left knee was while I was stationed in the Marine Corps.
My C&P Exam of 1996 did not include Deluca, My C-File was not view, The Examiner stated to me that he had looked at my x-rays and could not find anything wrong. At the end of the exam, he sent me for x-rays as he stated he didn't have any. All of my complaints of pain or my statements concerning military treatments were ignored. The doctor basicly stated I was a quack.
I have also found the medical reports sent in 3 1/2 months after my discharge and a year later with a diagnosis of dengenerative Arthritis of the Spine were ingored.
I believe there was a CUE committed as well with my first Audio C&P as I mentioned I had Tinnitus along with my hearing loss. I was service connected for the Hearing Loss but as I didn't know the Tinnitus was seperate, I wasn't service connected for that until 2010. According to what I can find, that would fall under Failure to Fully & Sympathetically Develop Claim.
This is just the tip of the ice burge.
OK, After reading all of that, can anyone give me some good advice.
I'm not sure how to handle the BVA and both their usal of a C&P exam that was I believed, previously considered inadequate or their deliberate changing of the examiners wording to deny an increase.
What did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?
Is my statement concerning the Tinnitus being a CUE, correct?
Thanks
Bill
Edited by elcamino_77us
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If you think you have a lot of retro coming I would hire a lawyer. I say this because the more you make off retro the more the lawyer makes ....20% of retro. You have 120 days to appeal to Court of Ve

“This completely changed the meaning of the examiners statement. “ I certainly agree. It was probably a typo but it could have changed the outcome of the claim...hard to tell here. “got my BVA de

A final thought here....most CUEs occur when the VA has given a disability a NSC rating in past decision, unappealed, which subsequently became SC. One can assume that the rating (although NSC in th

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Berta, I wish I had known about this site when I first got out. It would have made my claims a lot easier and more importantly correct the first time. Thank You for taking the time to teach me.

Billy

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Berta,

You had asked about if I had filed a claim for Radiculopathy, I didn't. Howerver, when I testified before the BVA, I stated that I would have shots of pain running down my legs from my back. Well it turns out that I maybe really lucky if I hadn't already shot myself in the foot. Reading through some of the post in the CUE section today, it dawned on me to check my past BVA's. My 2005 BVA had a section in the Remand as follows:

2. The veteran should be scheduled for a VA orthopedic examination in order to determine the impairment resulting from his service-connected disability of the lumbosacral spine. The claims file should be reviewed by the examiner in conjunction with the examination. The examination should include full range of motion studies, X-rays, and any other tests considered necessary by the examiner. The examiner should provide ranges of motion for the thoracolumbar spine, reflecting forward flexion, extension, left and right lateral flexion, and left and right rotation. In testing range of motion of the veteran's thoracolumbar spine, the examiner should note if the veteran has any additional limitation of motion due to such factors as weakness, fatigability, incoordination, restricted movement, or pain on motion. The examiner should also determine the frequency and duration of any incapacitating episodes resulting from the veteran's lumbosacral spine disability. Any other disability, to include any neurological disability, resulting from the veteran's lumbosacral strain also should be noted. The medical basis for all opinions expressed should also be given.

Also, as I was looking over my 2008 BVA, I noticed something odd at the end of one paragraph and beginning of the next.

A left knee x-ray showed calcified enchondroma or bone infarct of the distal left femur and ossific density posterior to the proximal left fibula which would be due to artifact or old trauma. The diagnosis was bilateral retropatellar pain syndrome as of 1994 and left cortical lesion of the distal left femur as of magnetic resonance imaging (MRI) in 1995 and x-ray in 1996. The examiner opined that the veteran had no current disability of the left knee.

Based on the evidence of record, there is no competent medical evidence to show that the veteran has a current left knee disorder. While the veteran was treated for left knee pain in service, he was never diagnosed with a left knee disorder.

Those two statements are in complete disagreement with each other.

Lastly, reading through a post where you had pasted 3.156 - New and material evidence. My conclusions is that as long as the VA has your SMR's and for whatever reason fails to use that information, it doesn't count as New and Material Evidence. Is that correct??? and if so is there a work-around???

© 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

Thanks,

Billy

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A final thought here....most CUEs occur when the VA has given a disability a NSC rating in past decision, unappealed, which subsequently became SC.

One can assume that the rating (although NSC in the past) was certainly based on established medical evidence,that VA had in their possession at that time.

So one can assume that a future award for the same disability, as service connected, meant VA had probably committed a CUE in the past unappealed rating decision.

There are many successful CUE claims BVA links , here at hadit I am sure,granted by the BVA on that basis. Unfortunately we don't have any way to access RO level grants of CUE.

One of my claims is an good example.

The VA in a posthumous rating , in 1998, deemed my husband's stroke as NSC and used a series of diagnostic codes and rated this at 80 % NSC.

They also failed to rate it "as if "service connected under 1151} and did not send the 1151 comp at that time.

In 2012, under CUE ,the VA properly rated his 1151 stroke "as if service connected" and rated it at 100% and sent the retro.

1151 awards of "as if service connected warrant the same rate of compensation as SC disabilities do.

The medical evidence at time of the 1998 decision was in VA's possession and should have garnered an award at 100% at that time.

Maybe Myler V Derwinski is a better example: This is my all time favorite CUE claim and by studying this claim, it sure helped me succeed in CUE.

I cited Myler in another question here today for someone and here it is at hadit:




Wrong diagnostic and wrong rating.

In Myler's case the GSW had been established as SC so it was not a NSC issue that became SC.

I am still appalled that VA, prior to the CUE award, maintained his gun shot wound, since the bullet went through the veteran's thigh and came out the other side, had caused NO muscular damage to the veteran.

So here Myler had SC ratings, but the wrong diagnostic codes were used based on the extent of his injury, thus the rating was improper.


I think you need to determine , in any older unappealed denials you had,
if you had claimed anything as SC, that they gave a NSC rating to, and which became SC subsequently. That is where a CUE could lie.

In some cases like mine, that I mentioned, the VA had malpracticed on 2 disabilities and they had never rated them at all during the veteran's lifetime. That is the only way VA would consider a lack of diagnosis, for a CUE claim in my opinion, because proven and documented malpractice had occurred.

However I had strong IMOs for the DMII claim, and FTCA evidence from OGC for the IHD claim, so that evidence established that the veteran had DMII and IHD as a VA patient and thus ,their lack of diagnostic codes and ratings were CUEs in that regard but they awarded on different bases.(I almost forgot again-

I filed CUE on the lack of IHD rating and they awarded that CUE too....

My point is ,it is the established documented medical evidence that determines CUE when the cued decision was made.

An IMO to support a CUE wont work.

An IMO ,however to support service connection at the highest rating possible , and it garners an award, sets the stage for a potential CUE if the same disability ,in the past was rated as NSC at a ratable level.


The first thing I did when I filed my SMC CUE claim was to go over the 1998 award letter.

Everything I needed was in that letter on the rating sheet.

Had it been a denial, the same thing could have evolved. But since it was an award letter, and since my former vet rep said not to NOD it...I let it go until I filed a separate claim and there it was....a prime facie CUE (actually 3 CUEs in one decision).

The worst CUE claim ,in my opinion, is the one that is never filed.

CUE is not a one shot deal either.

If the BVA denies a CUE, in some cases they often dismiss the CUE with a lack of prejudice.and when they make that legal statement, the claimant can re work the CUE, file it again, and possibly succeed.Those BVA decisions often contain clues as to what the claimant could do to rework the claim.

Most times the vet did not specify the specific legal error, thus the CUE claim must be denied or dismissed.

The best thing any potential Cuerino can do is go over every single past denial and award letter they have.Diagnostic codes have changed in time so they have to keep that in mind when they try to find if a diagnostic code error was made.on the rating sheets.

And if something was listed as NSC long ago, there is always the chance it has already become SC or will be, thus setting stage for CUE on the past unappealed decision, when VA awards the exact same disability as SC.

(often these are awarded under 3.156 however, because they involve newly discovered service records.)

Much discussion here available under a search for how that regulation works.









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@BertaI was recently informed you cannot or do not do messages. I apologize if this was something I should have known. However, there was something within this topic thread (as old as it is) that I could use an opinion on. Here is what I sent via mesage:

Berta, thank you for all you do here. I was hoping to run something by you. I was browsing the forums and came across an old topic regarding old cases and CUE. In it, you stated the following regarding this topic:

Quote

A final thought here....most CUEs occur when the VA has given a disability a NSC rating in past decision, unappealed, which subsequently became SC.

One can assume that the rating (although NSC in the past) was certainly based on established medical evidence,that VA had in their possession at that time.

So one can assume that a future award for the same disability, as service connected, meant VA had probably committed a CUE in the past unappealed rating decision.

 

In my case, I was actually being seen for a CP exam for my Left knee in 2013 (was for a presumptive as I was out of service in 2011 and the claim took 2 years to process). I recall talking to someone at the VA regarding my mental health not long later (I may have tried to seek some help at my C&P exam? I don't recall fully how I wound up there for that). This seemed like an intake or screening of sorts. They asked me about how things were going, current life events, all that.

I never requested a C&P exam for that then, nor did I ever receive any decision in the mail regarding that visit aside from my knee exam previously which was what I had claimed. Meanwhile, I had profiles from my unit (reserves after active duty)from 2012 thru 2014. I then went to the VA from 2015- 2018 for my MH issues.

Fast forward, I tried to apply for a MH claim around 2016 but had no idea what I was doing and it was denied, I did not appeal this.

I finally made another claim for my MH in NOV 2019 and was granted SC for depression and anxiety secondary to my knee issue.

Upon searching thru my VA records while researching my MH for 2019 claim, I discovered a CP exam for MH in 2013, the same time I did my knee exam that was granted.

In it, it has favorable findings but the examiner did not provide an opinion but noted my divorce at the time and other silly comments related to finances. He did mention before this that I was suffering from insomnia in service and taking meds.

 I was talking about what he had asked about. I assumed it was a screening, not a CP exam. I am unsure if this could be construed as a CUE (inadequate C&P exam??) and my current secondary SC for depression and anxiety could change my effective date to the presumptive date of my SC Knee?? Thanks for any insight!

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