Cue Question

[abhusal]

Hello everybody!

My VARO recently changed. I would like to file a CUE claim for the earlier VARO decision. In this case where to file a claim, on new one or the original one who made decision? Can I file use E-Benefitis to file it?

Your suggestion please.

Thanks

[carlie]

Hello everybody!

My VARO recently changed. I would like to file a CUE claim for the earlier VARO decision. In this case where to file a claim, on new one or the original one who made decision? Can I file use E-Benefitis to file it?

Your suggestion please.

Thanks

What exactly does the prior, final decision state in the Reasons and Bases Section

and what exactly do you feel the CUE is ?

What exact 38 USC law or 38 CFR reg do you feel they broke ?

[abhusal]

What exactly does the prior, final decision state in the Reasons and Bases Section

and what exactly do you feel the CUE is ?

What exact 38 USC law or 38 CFR reg do you feel they broke ?

Thank you very much Carlie for your response. I have following two situations:

1. Granted 30% on October 2008. Apply for increase on August 2010, reduced to 10%

“Treatment records, VAMC, Baltimore, from December 29, 2009 through April 29, 2011.”

This is wrong. VA failed to look at the Treatment records, VAMC, Baltimore, from May 01, 2009, which I clearly stated on claim application.

“You reported to the examiner that your irritable bowel syndrome symptoms have improved with treatment.”

“There was note in your private treatment records of intermittent melena with dyspepsia, which is noted to have resolved.”

“You remain on Prilosec for this condition.”

VA may not consider ameliorative effect of medication where the applicable Diagnostic Code is silent.

According to the United States Court of Appeals for Veterans Claims (Court), "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

2. Denied service connection on October 2008, reopened the case on August 2010 and granted service connection with 0%.

Following two contradictory statements on rating decision clearly indicate that there was error on decision dated October 10, 2008

“Our denial was based on no clinical evidence which confirmed the claim of sinusitis, chronic in nature.”

“A review of your private treatment records does indicate that there is evidence during active duty of chronic sinusitis with continued treatment after discharge from service.”

If examiner reported that “my sinusitis is the same condition which was present during active duty”, why it was denied service connection for the same issue per rating dated October 10, 2008 with notification on October 21, 2008.

“Your VA examination dated May 31, 2011 reported tenderness of the sinus cavities on palpitation of the maxillary and frontal sinus region.”

“The examiner reported that your sinusitis is the same condition which was present during active duty.”

“There is no evidence of one or two incapacitating episodes per year of sinusitis, nor is there three to six non-incapacitating episodes of sinusitis conformed by objective medical evidence, which if present may allow for a compensable evaluation.”

2006 (4 DR. VISITS / 1 TIME ANTIBIOTIC PRESCRIBED)

2007 (5 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2008 (2 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

2009 (7 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2010 (11 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2011 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2012 (3 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2013 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2014 (4 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

Edited August 17, 2014 by abhusal

[carlie]

Thank you very much Carlie for your response. I have following two situations:

1. Granted 30% on October 2008. Apply for increase on August 2010, reduced to 10%

“Treatment records, VAMC, Baltimore, from December 29, 2009 through April 29, 2011.”

This is wrong. VA failed to look at the Treatment records, VAMC, Baltimore, from May 01, 2009, which I clearly stated on claim application.

“You reported to the examiner that your irritable bowel syndrome symptoms have improved with treatment.”

“There was note in your private treatment records of intermittent melena with dyspepsia, which is noted to have resolved.”

“You remain on Prilosec for this condition.”

VA may not consider ameliorative effect of medication where the applicable Diagnostic Code is silent.

According to the United States Court of Appeals for Veterans Claims (Court), "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

2. Denied service connection on October 2008, reopened the case on August 2010 and granted service connection with 0%.

Following two contradictory statements on rating decision clearly indicate that there was error on decision dated October 10, 2008

“Our denial was based on no clinical evidence which confirmed the claim of sinusitis, chronic in nature.”

“A review of your private treatment records does indicate that there is evidence during active duty of chronic sinusitis with continued treatment after discharge from service.”

If examiner reported that “my sinusitis is the same condition which was present during active duty”, why it was denied service connection for the same issue per rating dated October 10, 2008 with notification on October 21, 2008.

“Your VA examination dated May 31, 2011 reported tenderness of the sinus cavities on palpitation of the maxillary and frontal sinus region.”

“The examiner reported that your sinusitis is the same condition which was present during active duty.”

“There is no evidence of one or two incapacitating episodes per year of sinusitis, nor is there three to six non-incapacitating episodes of sinusitis conformed by objective medical evidence, which if present may allow for a compensable evaluation.”

2006 (4 DR. VISITS / 1 TIME ANTIBIOTIC PRESCRIBED)

2007 (5 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2008 (2 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

2009 (7 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2010 (11 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2011 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2012 (3 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2013 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2014 (4 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

What exactly do you feel the CUE is ?

What exact 38 USC law or 38 CFR reg do you feel they broke ?

[abhusal]

What exactly do you feel the CUE is ?

What exact 38 USC law or 38 CFR reg do you feel they broke ?

Carlie,

I am not exactly sure about the 38 CFR but I feel they have following CUE

On first case:

1. VA failed to look at the Treatment records, VAMC, Baltimore, from May 01, 2009, instead they look at from December 29, 2009.

2. Since I was still on medication VA may not consider ameliorative effect of medication where the applicable Diagnostic Code is silent.

Second Case:

1. They denied my claim on 2008 saying: Our denial was based on no clinical evidence which confirmed the claim of sinusitis, chronic in nature.

2. They granted service connection on 2010 saying: A review of your private treatment records does indicate that there is evidence during active duty of chronic sinusitis with continued treatment after discharge from service. The examiner reported that your sinusitis is the same condition which was present during active duty.

At first they said there was no evidence. Next time they said there is evidence.

If examiner reported that “my sinusitis is the same condition which was present during active duty”, why it was denied service connection for the same issue per rating dated October 10, 2008 with notification on October 21, 2008.

3. They granted service connection with 0% on 2010 saying: There is no evidence of one or two incapacitating episodes per year of sinusitis, nor is there three to six non-incapacitating episodes of sinusitis conformed by objective medical evidence, which if present may allow for a compensable evaluation.

But looking at my medical records I do have more than three to six episodes.

2006 (4 DR. VISITS / 1 TIME ANTIBIOTIC PRESCRIBED)

2007 (5 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2008 (2 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

2009 (7 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

2010 (11 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2011 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2012 (3 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2013 (4 DR. VISITS / 3 TIMES ANTIBIOTIC PRESCRIBED)

2014 (4 DR. VISITS / 2 TIMES ANTIBIOTIC PRESCRIBED)

[abhusal]

Berta, I know you have good knowledge on CUE, could you please help me with this.

[Berta]

"3. They granted service connection with 0% on 2010 saying: There is no evidence of one or two incapacitating episodes per year of sinusitis, nor is there three to six non-incapacitating episodes of sinusitis conformed by objective medical evidence, which if present may allow for a compensable evaluation. "

If the sinus ratings in the VA SRD in 2010 say exactly that, and would have warranted a rating, at least at 10% SC, then you could file CUE on the 2010 decision.

But this is a 2010 BVA decision regarding sinusitus and the Schedule of ratings info as to symptoms is more detailed than what you posted here:


"Under Diagnostic Code 6513 -- for
chronic maxillary sinusitis -- a 10 percent evaluation is
assigned when a veteran has either one or two incapacitating
episodes per year of sinusitis (an incapacitating episode of
sinusitis means one that requires bed rest and treatment by a
physician) requiring prolonged (lasting four to six weeks)
antibiotic treatment, or has three to six non-incapacitating
episodes per year of sinusitis characterized by headaches, pain,
and purulent discharge or crusting. A 30 percent rating is
assigned when a veteran has either three or more incapacitating
episodes per year of sinusitis requiring prolonged (lasting four
to six weeks) antibiotic treatment, or has more than six non-
incapacitating episodes per year of sinusitis characterized by
headaches, pain, and purulent discharge or crusting. A 50
percent rating is warranted following radical surgery with
chronic osteomyelitis, or; near constant sinusitis characterized
by headaches, pain and tenderness of affected sinus, and purulent
discharge or crusting after repeated surgeries.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp10/Files4/1035894.txt

I assume VA had evidence that conformed to this part of the sinusitis regs:

"A 30 percent rating is
assigned when a veteran has either three or more incapacitating
episodes per year of sinusitis requiring prolonged (lasting four
to six weeks) antibiotic treatment, or has more than six non-
incapacitating episodes per year of sinusitis characterized by
headaches, pain, and purulent discharge or crusting."

Did the VA have, in their possession at time of the older decisions, evidence of the additional criteria as to headaches, pain, purulent discharge or crusting as well as those treatment records you mentioned?

If they did, it would be a potential valid CUE claim.