Is This A Cue

[BigRed]

Hello everyone and thanks in advance,

I filed a claim in May 2005. VA sent me to C&P exams for this claim and made a decision on Nov. 29, 2005. I was denied. I was frustrated and did not appeal within 1 year and the case was closed. Note: I also did notice that they had not listed my C&P results as evidence in the denial letter.

Fast forward to 2012. I received a letter from Va stating that they had re-opened my claim because in the Nov. 2005 decision they had not looked at/used my C&P results which they had received on November 15, 2005. Remember they denied me on Nov. 29th. I obtained a VSO who helped me prepare a NOD for DRO review. I have been treated for the same ailments since 2005 and the VSO stated that if the appeal is won then we should try and get retro back to the original claim date of May 2005 due to this CUE by VA.

I know that this is early in the game but if the appeal is won, would this be feasable?

BigRed

[carlie]

Big Red,

You posted:

....they had re-opened my claim because in the Nov. 2005 decision they had not looked at/used my C&P results which they had received on November 15, 2005.

This is precisely what 38 CFR 3.156 is for, which is reopening the claim due to new and material evidence. If your effective date turns out to be later than 2005, you should be able to successfully appeal based on 3.156, and not have to meet the the more difficult "Cue" standard of review.

bronco,

I think 38 CFR - 3.157 might be more applicable in this situation,from what's been posted

and my understanding of it,so far.

What do you think ?

[BigRed]

Berta,

BR,

That 2010 one page RD that states the denial is CC'd,

does not provide the info needed to help.

We need the exact wording from the Reasons and Bases Section.

How about scanning that in.

Thanks

Carlie here is the exact wording:

Service connection for headaches, nasal infections and throat conditions

A medical statement from Dr. X, Ear, Nose and Throat Specialist was received at the Department of Vet. Affairs on November 15, 2005; however this evidence was not considered in our rating dated November 29, 2005. Dr. X indicates you were seen sometime in October 2005. At that time, you didn't have many complaints in the ear, nose and throat area, apart from a sore throat now and then. You didn't have any complaints of nasal obstruction. Sometimes, your sense of smell deteriorated. You were otherwise healthy. The doctor didn't find any abnormalities on otoscopy. An inspection of the nose revealed nasal poliposis in the middle meatus, which was non-obstructing. Palpation of the neck was negative. At the time of the exam, there were nasal polyps. You were treated with oral corticosteroids for ten days. On October 21, 2005 you were seen for a second time and the nasal complaints had totally disappeared.

A medical statement from Dr. Y, Neurologist, indicates you were seen on October 7, 2005 as an outpatient. The statement indicated after your participation in Desert Storm, you complained about headaches everyday, dizziness, forgetfulness and nightmares. On physical examination, you were a healthy man, with normal conscienceness. The cranial nerves were quite normal, no tics or tumor. Sensory and reflex function of the upper and lower extremities was quite normal. You had no gain or coordination disturbances. Your cognitive functions to include intellect, behaviour and language and memory were quite normal. Your EEG and MRI of the brain were quite normal. (NOTE:THERE WAS NO MENTION OF THE PTSD DIAGNOSIS BY NEUROLOGIST, DR. Y OR HIS COLLEAGUE PSYCHOLOGIST, DR. Z.)

No medical evidence was submitted or identified to warrant a change in our prior denial. The claim for service connection for throat conditions, nasal infections and headaches is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.

BigRed

[Berta]

You stated

“was recently awarded rated 50% PTSD “

Then regarding the 2005 claim:

“Service connection for headaches, nasal infections and throat conditions “

“NOTE:THERE WAS NO MENTION OF THE PTSD DIAGNOSIS BY NEUROLOGIST, DR. Y OR HIS COLLEAGUE PSYCHOLOGIST, DR. Z.) “

I am confused BigRed....what did the PTSD diagnosis have to do with the 3 issues this decision was about?

“I put in a claim in 2010 for PTSD and CFS and was recently awarded rated 50% PTSD 50% Sinusitis with headaches (both effective July 2012).”

“I am thinking of submitting a NOD for an earlier effective date (2005 ) for both PTSD and Sinusitis (previously nasal conditions). Is this the logical thing to do?”

Yes....but can you tell us why VA stated they

gave you the 2012 EED instead of the date of the 2010 claim?

I am not a doctor but I have a sinus condition and in my opinion, the 50% sinusitis could have caused the,nasal infections, and throat conditions. They lumped the headaches into the 50% sinusitis rating.

VA does not connect any medical dots. It takes a real doctor to do that.

“ No medical evidence was submitted or identified to warrant a change in our prior denial. The claim for service connection for throat conditions, nasal infections and headaches is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.”

That seems odd because you stated they awarded 50% for the sinus condition “with” headaches.They could have mentioned that award, as denial for the headache part because they already had SCed the headaches as due to the sinusitis.

"nasal infections and throat conditions “

I dont know if VA still sends a rating sheet with these decisions.

Did they list these 2 conditions as NSC with any rating?

Under the diagnostic codes for these conditions -if they have diagnostic codes, they would be in the VA SRD here at hadit, and the VA gave them a "0" rating,you would need an IMO to explain their association to the SC sinus condition and then need to show they are at a ratable level.

Cases like that mean we have to weigh whether an IMO's cost would ever be fully recovered by a rating that might not have much impact at all on the overall SC rating you have now.

Then again, a NSC "0" condition, at some point, could not only become 10 or 20 %, or more, even become SC, and even contribute to a veteran's death. In that case those lower NSC ratings should be appealed.

I am surprised they didnt state the throat and nasal condition was part of the sinusitus award.

Have you check the Cinusitis ratings in the VA SRD....I regret I dont have time to do that for you.

Maybe they sent that info with the PTSD and sinusitis award letter.

.

You stated

“was recently awarded rated 50% PTSD “

Then regarding the 2005 claim:

“Service connection for headaches, nasal infections and throat conditions “

“NOTE:THERE WAS NO MENTION OF THE PTSD DIAGNOSIS BY NEUROLOGIST, DR. Y OR HIS COLLEAGUE PSYCHOLOGIST, DR. Z.) “

I am confused BigRed....what did the PTSD diagnosis have to do with the 3 issues this decision was about?

“I put in a claim in 2010 for PTSD and CFS and was recently awarded rated 50% PTSD 50% Sinusitis with headaches (both effective July 2012).”

“I am thinking of submitting a NOD for an earlier effective date (2005 ) for both PTSD and Sinusitis (previously nasal conditions). Is this the logical thing to do?”

Yes....but can you tell us why VA stated they

gave you the 2012 EED instead of the date of the 2010 claim?

I am not a doctor but I have a sinus condition and in my opinion, the 50% sinusitis could have caused the,nasal infections, and throat conditions. They lumped the headaches into the 50% sinusitis rating.

VA does not connect any medical dots. It takes a real doctor to do that.

“ No medical evidence was submitted or identified to warrant a change in our prior denial. The claim for service connection for throat conditions, nasal infections and headaches is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.”

That seems odd because you stated they awarded 50% for the sinus condition “with” headaches.They could have mentioned that award, as denial for the headache part because they already had SCed the headaches as due to the sinusitis.

"nasal infections and throat conditions “

I dont know if VA still sends a rating sheet with these decisions.

Did they list these 2 conditions as NSC with any rating?

Under the diagnostic codes for these conditions -if they have diagnostic codes, they would be in the VA SRD here at hadit, and the VA gave them a "0" rating,you would need an IMO to explain their association to the SC sinus condition and then need to show they are at a ratable level.

Cases like that mean we have to weigh whether an IMO's cost would ever be fully recovered by a rating that might not have much impact at all on the overall SC rating you have now.

Then again, a NSC "0" condition, at some point, could not only become 10 or 20 %, or more, even become SC, and even contribute to a veteran's death. In that case those lower NSC ratings should be appealed.

I am surprised they didnt state the throat and nasal condition was part of the sinusitus award.

Have you check the Cinusitis ratings in the VA SRD....I regret I dont have time to do that for you.

Maybe they sent that info with the PTSD and sinusitis award letter.

.

[Berta]

You stated

“was recently awarded rated 50% PTSD “

Then regarding the 2005 claim:

“Service connection for headaches, nasal infections and throat conditions “

“NOTE:THERE WAS NO MENTION OF THE PTSD DIAGNOSIS BY NEUROLOGIST, DR. Y OR HIS COLLEAGUE PSYCHOLOGIST, DR. Z.) “

I am confused BigRed....what did the PTSD diagnosis have to do with the 3 issues this decision was about?

“I put in a claim in 2010 for PTSD and CFS and was recently awarded rated 50% PTSD 50% Sinusitis with headaches (both effective July 2012).”

“I am thinking of submitting a NOD for an earlier effective date (2005 ) for both PTSD and Sinusitis (previously nasal conditions). Is this the logical thing to do?”

Yes....but can you tell us why VA stated they

gave you the 2012 EED instead of the date of the 2010 claim?

I am not a doctor but I have a sinus condition and in my opinion, the 50% sinusitis could have caused the,nasal infections, and throat conditions. They lumped the headaches into the 50% sinusitis rating.

VA does not connect any medical dots. It takes a real doctor to do that.

“ No medical evidence was submitted or identified to warrant a change in our prior denial. The claim for service connection for throat conditions, nasal infections and headaches is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.”

That seems odd because you stated they awarded 50% for the sinus condition “with” headaches.They could have mentioned that award, as denial for the headache part because they already had SCed the headaches as due to the sinusitis.

"nasal infections and throat conditions “

I dont know if VA still sends a rating sheet with these decisions.

Did they list these 2 conditions as NSC with any rating?

Under the diagnostic codes for these conditions -if they have diagnostic codes, they would be in the VA SRD here at hadit, and the VA gave them a "0" rating,you would need an IMO to explain their association to the SC sinus condition and then need to show they are at a ratable level.

Cases like that mean we have to weigh whether an IMO's cost would ever be fully recovered by a rating that might not have much impact at all on the overall SC rating you have now.

Then again, a NSC "0" condition, at some point, could not only become 10 or 20 %, or more, even become SC, and even contribute to a veteran's death. In that case those lower NSC ratings should be appealed.

I am surprised they didnt state the throat and nasal condition was part of the sinusitis award.

Have you check the Sinusitis ratings in the VA SRD....I regret I dont have time to do that for you.

Maybe they sent that info with the PTSD and sinusitis award letter.

.

[john999]

I think you should NOD the denial for all the conditions that could be secondary to sinusitis. Leave the PTSD alone for a while until you can get more evidence for a higher rating. The headaches, throat and sinus infections could all be secondary symptoms of sinusitis so that 50% rating could go back to 2005. Maybe run this by a VA lawyer. Are you working? I think you have enough for a TDIU claim especially if you are not working since they you could probably get your PTSD rating bumped up to 70%. I think the VA just does not want to pay you the 8 years of retro for the conditions you were denied for in 2005 because they seem like symptoms of sinusitis. I think the VA is trying to play "hide the retro". I also find it hard to believe you had no symptoms of PTSD in 2005. I think you can get money out of this thing if you have a good lawyer.

John

[BigRed]

Berta,

I hope this helps, I get confused myself:

In 2005 I was denied sc for headaches, nasal infections, skin condition, and throat conditions. VA reason for decision - all 4 were the result of acute conditions. VA had sent me to and received my C&P results but did not mention or used them when decision was made. My C&P's consisted of a Dermatologist (skin), Nose, throat and ear doctor (nasal infections/throad condition) and Neurologist (headaches). The dermatologist did not know what I had so stated that he would contact VA when I had a breakout. NTE doctor found polyps, gave me cortisteroids and then stated that I was all well (Not true at all), Neurologist stated that I was physically fine but psychologically was a wreck, diagnosis PTSD and sent me to a Psychologist who also diagnosed PTSD. I did not appeal because I was frustrated with the entire thing.

In 2010 I sent in a new claim for headaches, nasal infections, skin condition, tired for no reason, muscle pain and throat conditions. Two months later I receive a letter from the VA stating that they had received the C&P's in 2005 and were denying my claim again for headaches, nasal infections, skin condition, and throat conditions. In reasons for decision it states that NTE gave me cortisteroids and I was fine (not true) and Neurologist stated that I was physically fine - no mention of the PTSD Diagnosis.

The 2010 claim was denied so I created a NOD for it and the reopened denied 2005 claim. So I currently have 2 NODs on appeal.

In July 2012 I file a claim for PTSD, Chronic Sinusitis and CFS. In 2013 I am awarded 50% PTSD and 50% Chronic Sinusitis, the CFS is listed as "tired for no reason" from the 2010 so still in appeal.

Does make it any clearer?

I agree with John, I think that they are trying to play games. In my opinion the PTSD and Chronic Sinusitis should be retro'd back to the original claim of 2005. My thing is this, if the Gulf War General Medical exam was used back then PTSD would have been checked off, I would have been sent to a Psychologist and service connected for PTSD. This was not done and the PTSD was it seems intentionally left out. That is one of the many mistakes...

What does everyone think, I am thinking of getting a lawyer because my head is spinning?

BigRed

Edited September 19, 2013 by BigRed