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Do I Have A Cue?


dav_marine72

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  • HadIt.com Elder

Hi All,

I am wondering if I have a CUE for the service connection of bilateral Pes Cavus:

Nov. 1991 - Entered USMC boot camp with no foot problems prior

Dec. 1991 - Fractured Right Foot 3rd Metatarsal

May 1992 - Stress Fracture Left Foot 3rd Metatarsal

Nov. 1995 - Discharged Honorably and filed for service connection of both feet

June 1996 - Residuals of Fractured Right Foot 3rd Metatarsal service connected and rated 10%, residuals of Stress Fracture Left Foot 3rd Metatarsal service connected 0%

August 1996 - Diagnosed with Pes Cavus bilaterally at local VA hospital

Sept. 1996 - July 2000 - Several more diagnoses of Pes Cavus, unforgiving feet, Neuritis, compression of both feet

July 2000 - Filed for increases of both feet

August 2001 - Denied increases, filed for appeal

May 2002 - Formally requested service connection for Pes Cavus

April 2004 - Hearing at RO with DRO - I asked why my request for service connection was never acknowledged, she agreed and stated she would look into it

August 2004 - RO denies increases for both feet, no mention of Pes Cavus service connection

March 2008 - BVA denies ratings increase, states the Veteran has Pes Cavus but does not comment further, states complaints of pain, weakness and cramping do not meet criteria for higher rating

December 2009 - USCAVC issues joint remand stating that the board and RO did not consider all the evidence of record. The USCAVC states they should consider rating my feet under Pes Cavus if it would be more beneficial - court gives time for additional response

September 2010 - My attorney responds pointing out the usual missed evidence, etc. She points out the fact that I asked for service connection of Pes Cavus in a letter in 2002 and during my hearing in 2004. She asked this to be referenced:

  • “The VA is obligated to determine all potential claims raised by the evidence.” Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).

March 2012 - BVA decision references remand from the USCAVC and instructs RO to order new exams for both feet. They state all necessary tests must be ordered. Furthermore they state to find out is the Veteran has Pes Cavus of both feet. If the Veteran does then to indicate the specific symptoms present from the aliment. At the end they state consider rating the bilateral foot disabilities under Pes Cavus

July 2013 - Exam by VA at local hospital states the following: Diagnosis - Pes Cavus / date of diagnosis: 1997, Does the Veteran have acquired claw foot (Pes Cavus)? Yes, effect on toes (Great toe dorsiflexed, both), Pain and tenderness due to Pes Cavus (Marked tenderness under metatarsal heads, both) (Very painful callosites, both) (Shortened plantar fascia, both), Is there evidence of bilateral weak foot? Yes, report underlying condition (Feels severe pain in both feet, unable to stand for more than 5 minutes, per Vet he falls due to feet), Assistive Devices? Yes, cane (constant) and braces (Regular), Degenerative or Traumatic Arthritis, both, is the degenerative or traumatic arthritis documented in multiple joints of the same foot? yes, Functional Impairment, Yes (Veteran with a history of fracture of the right foot, stress fracture of the left foot, Pes Cavus and Arthritic changes in both feet, Veteran has constant pain of both feet, unable to walk far, unable to stand long, episodes of

falling, moderate functional impairment

July 2013 - RO rating decision denies higher rating for both feet, in both cases the rational was close to this: July 2013 exam shows documented history of bilateral metatarsal injuries, but contains no findings indicating abnormalities due to this disability that would support higher ratings, there was a mild varus deformity but this was not indicated as being due to the metatarsal injuries

So I stay at 10% right foot, 0% left foot

I have an IME in the works and nexus letters for Pes Cavus, Arthritis, Ankle Equinus, and the neurological component. The skirting of the Pes Cavus for 12 years has to be a CUE right? Also how could they not tie in the arthritis and bilateral weak foot condition to my service? LOL. I was a grunt in the Marines carrying a pack up mountains for 4 years. I know, I know. Games, games. Unreal. Thanks in advance.

Edited by dav_marine72
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With the decision of July 2013, I don't think that would be a CUE. Granted, they skirted the issue. But now they are saying that even taking the issue into a consideration wouldn't result in a higher rating. Aren't you still within the appeal period?

Appeal. Appeal. Appeal.

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  • HadIt.com Elder

Thanks for the post. Yes both my feet are still on appeal 14 years now. So even though they had the evidence asking for SC in their records and they ignored it that would not constitute a CUE? I received my nexus letters and the IME linking the Pes Cavus to my service time so I should be good. I just didn't know if that would be considered a CUE and if it was, what the difference would be filing a CUE versus just the appeal. Thank you.

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dav_marine72,

They have certainly been messing up - that is for sure. But if you want to file a CUE claim, the claim has to be finally decided. Your claim hasn't been finally decided if it is still under appeal (or within the appeal period). I would think that continuing the appeal would be the better route, as the standards for CUE are very stringent.

It looks like they are saying that even if they had considered the other conditions, you would not have received a higher rating anyway. So they are saying that no matter what it is called, the rating would be the same. So it looks like the the first thing to fight would be that it does constitute a higher rating. Once you can establish that with them, if they don't go back to an earlier effective date, you can appeal that the higher rating should be back when you originally filed, or when you think the rating should have been granted.

I think a CUE would be hard with this one because:

1. First you would have to wait until the claim has been finally decided (i.e. is no longer in the appeal period).

2. Then you would have to show that the error was so clear and unmistakable that no other decision could have been made.

With an appeal, you are asking them to reconsider the evidence and make a different decision. With a CUE you have to show that they made a glaring error, and that their decision was totally wrong. CUE's are tough!

You might want to read:

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