Cue Claim And Claim For Secondary Condition

[john999]

I filed a CUE claim today at the St. Petersburg Regional Office and a claim for a secondary condition for DMII. I just found out via a CT scan that I arteriosclerosis in my legs. I have read the DMII traning letter, and it says that cardiovascular complications like peripheral arterial disease are common complications. I already have perhipheral neuropathy in my legs and now I have PAD it looks like. It this something I should claim as a secondary condition to DMII. I am getting exactly no special follow-up for this stuff from the VA and I only find out by accident about the PAD. My relatieves on both sides of my family have lost limbs due to amputations so I am bit worried about this and want to know if I should try and claim it. I know PAD progresses and If I am going to one day lose a leg I want to claim it now.

[john999]

1968

I do walk as much as I can. I have big trouble with my feet and am going to a podiatrist. I am not that much overweight but my feet are very painful for me due to nerve problems and inflamation. I understand what you say. I am going to have a procedure done on my heels called ESWT. It is sort of like using high energy emissions directed into the tissue of the feet like the ultrasound used to break up gall stones. I wear orthotics and limp around. It is a bummer because I like to walk but my feet are so painful and can't walk every day. Thanks for the concern!

[carlie]

John,

What grounds is your CUE based on?

When the decision you are cueing was made did VA have all specific evidence

required to support a grant for that specific claim.

Did you make it VERY clear that you were filing this as a CUE claim ?

Did you state exactly what final and unappealed VA decision to include the date of that decision?

Did you state exactly what laws and or regulations were not followed and refer

to each specific CFR regs for the error.

I'm really excited about this.

carlie

Edited September 20, 2006 by carlie

[john999]

Carlie

The decision I am filing the CUE on is my initial claim for service connection that was granted in 1973. The VA had a report from my treating physician that I was unemployable and incapacitated but they never listed or considered this evidence. I know they had this information because I found it in my C-File. They just completely ignored it and made the decision based on SMR's and medical records from the VA. I got 10% and at the time I was unemployed and unemployable. In the decision the VA stated that employability was not applicable in my decision even though my doctor said I was unemployable. If the VA had considered my doctor's report my rating would have been much higher. I sent a copy of the doctor's report from 1972. I will probably be shot down for some reason, but I will appeal this out of the VARO. The record I have of the initial decision is the most pathetic thing you have ever seen, and nothing like the kind of rating decisions we get today. I should have been given the benefit of the doubt for a higher rating.

[carlie]

John,

Are you saying you should have been given the benefit of the doubt for a higher rating or the benefit of the doubt for unemployability ? I see this as two different things. Also, we need to know, what year did benefit of the doubt rule go into effect ? Specifically, was benefit of the doubt an existing rule in 1973 ?

"The VA had a report from my treating physician that I was unemployable and incapacitated but they never listed or considered this evidence."

Are you claiming this was an informal claim never adjudicated, or did you at a later date file a claim for unemployability ?

carlie

[Angela]

The benefit of the doubt law is 38 U.S.C. § 5107 (B) (1989) but I didn't read the explanation of John's CUE as requiring the benefit of the doubt. Sounds like a failure to consider evidence. If the evidence showed undebatably that the rating should have been higher then you don't even have to prove they didn't consider evidence. Just prove that the evidence supported a higher rating undebatably.

I think I read in a decision somewhere that the benefit of the doubt rule was embraced by the VA before it became public law in 1989. I'll look though my files and see if I can't find the reference.

Edited September 20, 2006 by Angela

[john999]

Carlie

In those days the VA sent a form to your doctor to fill out in support of your claim. The form was

21-4142. On this form my doctor made a statement under the section 5a. in which he listed my clinical findings. Among other things he said "Inability to work" and that the veterans disorder " represents a major disability for this patient", and that the veteran was "frequently incapacitated due to the psychotic proportions of the disorder". I never applied for IU since I did not even know there was such a thing, so I guess this was an informal claim for IU. In fact I should have gotten 100% schedular at that time. The VA just ignored the doctor's letter and from what I have seen in the original decision did not even list the evidence. Under disagnosis the doctor wrote pseudo-psychopathic schizophrenia. This means that the person is mentally ill but acts like a psychopath. All that meant was I got in trouble when I got back from Vietnam. I was facing a courts martial when I took the unsuitability discharge on advice from the JAG. I was confused and ill and I did not know what else to do. I believe benefit of the doubt has been around since the beginning of time. A 10% rating was far too low for a person that did not go out of the house for months at a time and could not work. This is my contention. I never filed for IU but years later I filed for a higher rating. I never appealed the final decision granting 10%, but reopened my claim years later.