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 (see edit history)

[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.

[abhusal]

"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.

Berta, Thank you very much for the response.

Yes. They did have all those evidence in their possession at the time of decision. When I filed the claim initially I have submitted copy of my inservice medical records. After the service everything on VA Hospital medical record.

In this situation how do I move forward? Your advice please.

[Berta]

Send the CUE to the VARO that committed the error.

Put your C file number on the letter and state:



This is a claim under CUE, 38 USC, 5109A.


I believe that VA erred in their rating of my service connected sinusitis in a VARO decision dated October 2008, which I have enclosed copy of, as Exhibit A.

The legal error is that VA failed to comply with 38 CFR 4.6 et al, thus:

§ 4.6 Evaluation of evidence.
"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

http://www.law.cornell.edu/cfr/text/38/4.6 Exclosed as Exhibit B

This error caused manifested an altered outcome to my detriment ,in the VA's decision enclosed , because the medical evidence in VA's possession at time of this alleged CUE, clearly warranted a proper and compensable rating under Diagnostic Code 6513 -- for
chronic maxillary sinusitis.

I have enclosed copies of the VA medical records, in your possession at time of this decision, that the VA had overlooked. Exhibit C
I request timely attention to this valid CUE claim.

Enclosed Exhibit A ( pages) to include Rating sheet
Exhibit B ( pages)
Exhibit C ( pages) Sincerely,


( Copy, save, and send) BUT....

I dont understand this however, and this additional decision could change everything

" Granted 30% on October 2008. Apply for increase on August 2010, reduced to 10%"....what claim was that regarding? The IBS? or the sinusitis?

If for the sinusitis , can you scan and attach their reasons and bases herewith the evidence list?

I feel the 2010 decision might hold a CUE as well but am not sure at this point.

You had private records in VA's possession , as I understand this....

Have you yourself gotten a copy of your C file or been able to determine exactly what private records they had?

In your C file their should be a copy of a 21-22 form (think that is it) and it is an authorization form for private medical records.

(Cover C file number, name, address first)


There is more CUE info as to a template here:

Edited August 19, 2014 by Berta (see edit history)

[abhusal]

Thanks again Berta.

" Granted 30% on October 2008. Apply for increase on August 2010, reduced to 10%"....what claim was that regarding? The IBS? or the sinusitis?

This is for IBS with GERD.

They granted 30% on October 2008. Apply for increase on August 2010, reduced to 10%

They did not look at my entire VA medical records

“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.

And they said:

“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.”

But I believe:

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).

[abhusal]

Berta, all my Dr. visits are at VA hospital. So they should have easy access on them.

This is for Sinus.

Denied service connection for the “Chronic sinusitis of the frontal and maxillary sinus cavities” per rating dated October 10, 2008 with notification on October 21, 2008

Denial Reason:

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

Summary of Medical Records before October 21, 2008

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

01/14:

sinus headache pressure behind eyes, stopped up nose (hard to breathe), Headache pain constant and sharp

Antibiotic Prescribed? YES/10 DAYS

09/05:

throat, nose and eyes burning, headache, mild body ache, dry mouth, nasal and throat congestion

09/09:

sinus pressure headache, body ache, nose and whole face burning

09/12:

Presents to TMC with c/c of meds not working after 9 days of sinus pressure

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

02/17:

sore throat, nasal congestion and lethargy x 3 days

Antibiotic Prescribed? YES/7 DAYS

04/23:

Chills at night, eyes are burning, lightheaded and nasal congested for past week

Antibiotic Prescribed? YES/8 DAYS

08/09:

Problem started as runny nose, sneezing a lot, and chills, sinus pain/pressure

Antibiotic Prescribed? YES/7 DAYS

11/29:

Nasal discharge; Post nasal drip; Sneezing; Throat Pain

12/14:

Sinus pain; Nasal discharge mucinous; Nasal passage blockage increased; Cough

Antibiotic Prescribed? YES/7 DAYS

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

02/25:

Sinus pressure, Headache, Body ache, Cold

Antibiotic Prescribed? YES/10 DAYS

06/17:

Fever and chills; Headache and sinus pain; Itching of the eyes and eyes watering; Earache, nasal discharge watery, mucinous, nasal passage blockage, sneezing, and sore throat; Myalgia

Antibiotic Prescribed? YES/5 DAYS

****************************************************************************************************************************************************************************************************************************************

Re-opened the claim on August18, 2010. Received letter dated, June 22, 2011 notifying me of decision to service connection granted with an evaluation of 0% effective August18, 2010.

Reason was:

“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.”

“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.”

Summary of Medical Records after October 21, 2008

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

05/01:

freq. throbbing headaches, especially when sinuses act up-gets blurring, photophobia and nausea; + congestion/sinus pressure and yellow mucus

Antibiotic Prescribed? YES/10 DAYS

05/19:

Sore throat, sinus and upper respiratory congestion for past 4-7 days. Productive of light yellow septum

07/09:

states with air conditioning exposure he gets congestion and itchy eyes-takes Claritin

10/30:

Primary Care Provider Evaluation

11/13:

headache, burning sensation in both eyes, body ache, chills, neck pain, light headedness, and a non-productive cough x1 week; taking OTC sinus medication w/o relief

Antibiotic Prescribed? YES/10 DAYS

12/16:

BODY ACHES, h/a, SINUS PRESSURE, SORE THROAT, CHILLS

Antibiotic Prescribed? YES/14 DAYS

12/29:

recurrent myalgia, sore throat, sinus pressure, chills/fever, insomnia @ night, +cough with yellow secretions, upper airway congestion

Antibiotic Prescribed? YES/45 DAYS

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

01/08:

Antibiotics seem to be working less well than in past. He is on chronic use of nasal steroids. Patient states that he has worse nasal obstructive Sx in winter but Sx all year round. Chronic headaches also worse with cold weather. Some spring time and fall hay fever Sx

01/15:

The nasal septum is slightly deviated to the left with a nasal spur.

01/15:

He gets a lot and feels tired a lot; has headache and body aches- has associated fever. States his sinus condition has not significant improved

02/17:

No improvement sinus pressure chronic, body aches, (+) chills, also complains or right side’s sore throat and ear

02/21:

Runny nose, sinus congestion/pressure, watery eyes; Pt carries dx of allergic rhinitis. States for years, has had sinus pressure with associated h/a, rhinorrhea, congestion, itchy/watery eyes, body aches, feels run down

04/16:

main concern is his sinus problems with facial pain that brings on body aches, fever, mucus is white per pt. Sxs x 2 wks now

Antibiotic Prescribed? YES/14 DAYS

05/13:

Chest congestion, productive coughs of brown mucus, nasal congestion and headache. States that he has itchy eyes and nose, sneezing. Patient is taking Claritin which is ineffective

05/26:

sore throat, headache and body aches, chills and chest congestion with sore throat for week and not getting better

09/17:

Nasal congestion, cough, facial pain, + H/A, sore throat, chest congestion and cough x 5 days. Taking Naproxen without any relief. Taking Loratadine QD

Antibiotic Prescribed? YES/10 DAYS

11/10:

Sore throat for 3 days with stuffy, runny nose, throat clearing, ear fullness, dull achiness severe above/below eyes, sore throat, tired, achiness with two weeks ago having cough, post nasal drip and yellow sputum, no fever, taking Motrin

Antibiotic Prescribed? YES/10 DAYS

11/12:

PCP Evaluation: still having frontal headache from sinus congestion. Starting antibiotics two days ago.

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

06/09:

for sinus headache, post nasal drip for yellow mucus, afebrile, sore throat 2 days ago

09/16:

cough, sore throat, wheezing and chest pain with deep breathing, congestion, body aches

Antibiotic Prescribed? YES/7 DAYS

10/31:

cough, sore throat, wheezing and chest pain with deep breathing, congestion, body aches

Antibiotic Prescribed? YES/10 DAYS

12/16:

Congestion, yellow nasal discharge for over a week

Antibiotic Prescribed? YES/10 DAYS

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

01/26

sinusitis, seasonal allergies, and generalized body aches, flu like sxs

Antibiotic Prescribed?YES/10 DAYS

06/01

Reports sinus pressure, headache and congestion x 2 weeks. + tired, + chills. Taking Motrin as needed

Antibiotic Prescribed?YES10 DAYS

09/10

Productive cough with grey sputum, chills, night sweats, generalized body ache and headache; patient states cold, congestion and aching

Antibiotic Prescribed? YES/10 DAYS

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

02/04

Sinus congestion and pain. Started with cold symptoms, HA, sinus congestion, body aches, sore throat and cough x 10days. Most of symptoms improved but continuing sinus congestion and ttp

Antibiotic Prescribed? YES/7 DAYS

03/11

SECURE MESSAGING: I am having problem with sinus infection these days again. I took antibiotic few weeks ago but didn't do well. I am suffering from dry nose, itchy eyes and pain around eyes and nose. Sometimes I see blood coming out from my nostrils when I sneeze.

03/29

Sinus pressure, sinus congestion, bilateral ear pain, + sore throat and cough. Taking NSS, flunisolide, and Claritin w. continued symptoms. + Fevers.

Antibiotic Prescribed? YES/10 DAYS

09/30

He is complaining of postnasal drip, sinus pain, rhinorrhea, sinus congestion, and headache for five days. The patient states that he has recurrent sinusitis that does not seem to completely go away

Antibiotic Prescribed? YES/10 DAYS

2014 (6 DR. VISITS / 4 TIMES ANTIBIOTIC PRESCRIBED)

02/20

He is complaining of sinus congestion, sinus pain with pressure along the eyes and facial area and ear pain. Onset: Five days ago. He also has body aches. He is not sleeping well. He is also complaining of headaches.

Antibiotic Prescribed? YES/5 DAYS

02/28

Lingering cold symptoms x 2 weeks; a Zithromax ineffective; dry, reddened upper lips with body aches. Nasal congestion present. Burning nasal passages with inspiration. Blood tinged secretions with blowing nose on occasion

03/07

Three weeks of sinus pressure, severe sinus pain, sinus congestion, and severe discharge from nose. He is having body aches and nausea also now. He has been seen twice for same problem. He also has headache.

Antibiotic Prescribed? YES/10 DAYS

03/22

postnasal drip, sinus pain, sinus congestion, ear pain, rhinorrhea and headache for five days

Antibiotic Prescribed? YES/14 DAYS

03/28

Veteran presents to CH CBOC as a walk-in c/o a sinus infection. Veteran states that he has been ill for a month and has been on Augmentin and Cefadroxil with no relief.

06/23

sore throat, postnasal drip, sinus pain, sinus congestion, and rhinorrhea

Antibiotic Prescribed? YES/14 DAYS

Edited August 19, 2014 by abhusal (see edit history)

[abhusal]

Berta, please look at the following rating decision:

Edited August 19, 2014 by abhusal (see edit history)

[abhusal]

Hi Berta, your input please ( with scanned rating decisons)

[Berta]

You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision.

I seem to understand some of the treatment records were from a private doctor.....

A CUE is like the Watergate question:

What did they know and when did they know it....

Did the VA have ALL of your private medical records when they made that older decision?

Or were the records you posted here from the VA or a private doctor?

But it does seem to me that your statement here is correct.:

"They did not look at my entire VA medical records

“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."

If I were you I would file the CUE above and list and enclose all of these records listed , as evidence for the CUE claim.

When I list evidence enclosed for anything I use legal Exhibit stickers or yard sale stickers ...anything that I can identify the evidence with on a list that I always add to my submission, with a brief description of each piece of evidence.

I have been victimized by VA's failure to hold to 38 CFR, 4.6 many times over the past 20 years so I make sure I cover myself , particularly for my CUE claims.,by identifying my evidence enclosed and by sending everything to the via Priority mail with a tracking slip showing they got it.

I also use name and address stickers on every page I send to them and also put my C file number on each page.

It is not medical evidence that awards a CUE claim...it is the fact that they had the medical evidence but their interpretation of it was legally incorrect.

The SOC itself isn't really a legal document, but can often lead to a legal argument.

It is usually in my opinion, the Rating sheet that reveals where the legal Issue occurs.That is where they use 38 CFR,USC and M21-1MR.

38 USC 5107 requires evidence 'in VA's possession' at time of alleged CUE.......and .can mean many types of evidence that may not be in the med rec files at all.

In my past SMC CUE some evidence was still at the Office of General COunsel VA, but perhaps was not with the RO when I Cued a 1998 decision.

But It was still in VA's possession.

Something for my pending CUE was never submitted to my VARO, but it was a letter to my husband from a former Secretary for the VBA.

It was therefore in VA's possession at time of the alleged CUE,regardless of where ,at VA, it actually came from .

My husbands VA Voc Rehav records were hard to find, I dont think I ever found them, but I referred to them as evidence for some of my claims because I knew they were "in VA's possession" even though I didnt have them.

If the VA denies the CUE ( and that decision might contain another legal error), you could get an IMO maybe from your private sinus doctor, and re-open the claim with it. If it complies with our IMO criteria here and you succeed that way, then you can file another CUE on the older decision, using the new award, to seek more retro.

CUE is not a one shot deal.

The BVA denies many CUEs without prejudice.I read a lot of BVA CUE claims and can see why they deny many of them.

That means( without prejudice) that , if the CUE is re- filed and shaped differently, it might succeed.

As someone here said a few times, there is more than one way to skin a cat. I love cats but I fully agree with their point regarding VA claims issues.

[abhusal]

You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision.

I seem to understand some of the treatment records were from a private doctor.....

A CUE is like the Watergate question:

What did they know and when did they know it....

Did the VA have ALL of your private medical records when they made that older decision?

Or were the records you posted here from the VA or a private doctor?

But it does seem to me that your statement here is correct.:

"They did not look at my entire VA medical records

“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."

If I were you I would file the CUE above and list and enclose all of these records listed , as evidence for the CUE claim.

When I list evidence enclosed for anything I use legal Exhibit stickers or yard sale stickers ...anything that I can identify the evidence with on a list that I always add to my submission, with a brief description of each piece of evidence.

I have been victimized by VA's failure to hold to 38 CFR, 4.6 many times over the past 20 years so I make sure I cover myself , particularly for my CUE claims.,by identifying my evidence enclosed and by sending everything to the via Priority mail with a tracking slip showing they got it.

I also use name and address stickers on every page I send to them and also put my C file number on each page.

It is not medical evidence that awards a CUE claim...it is the fact that they had the medical evidence but their interpretation of it was legally incorrect.

The SOC itself isn't really a legal document, but can often lead to a legal argument.

It is usually in my opinion, the Rating sheet that reveals where the legal Issue occurs.That is where they use 38 CFR,USC and M21-1MR.

38 USC 5107 requires evidence 'in VA's possession' at time of alleged CUE.......and .can mean many types of evidence that may not be in the med rec files at all.

In my past SMC CUE some evidence was still at the Office of General COunsel VA, but perhaps was not with the RO when I Cued a 1998 decision.

But It was still in VA's possession.

Something for my pending CUE was never submitted to my VARO, but it was a letter to my husband from a former Secretary for the VBA.

It was therefore in VA's possession at time of the alleged CUE,regardless of where ,at VA, it actually came from .

My husbands VA Voc Rehav records were hard to find, I dont think I ever found them, but I referred to them as evidence for some of my claims because I knew they were "in VA's possession" even though I didnt have them.

If the VA denies the CUE ( and that decision might contain another legal error), you could get an IMO maybe from your private sinus doctor, and re-open the claim with it. If it complies with our IMO criteria here and you succeed that way, then you can file another CUE on the older decision, using the new award, to seek more retro.

CUE is not a one shot deal.

The BVA denies many CUEs without prejudice.I read a lot of BVA CUE claims and can see why they deny many of them.

That means( without prejudice) that , if the CUE is re- filed and shaped differently, it might succeed.

As someone here said a few times, there is more than one way to skin a cat. I love cats but I fully agree with their point regarding VA claims issues.

Berta, Thank you very much again

"You certainly have, in my opinion, evidence of chronic sinusitus with evidence that VA should have considered in their past decision."

VA proved by themselves on 2011 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.

And they granted 0% on 2011

"I seem to understand some of the treatment records were from a private doctor....."

Is VA medical records also called private treatment record? All my Dr. visits were at VA Hospital, so I don't have any medical records outside VA hospital.

"Did the VA have ALL of your private medical records when they made that older decision?"

Older calim was processed by Benefits Delivery at Discharge (BDD) unit which was denied on October 10, 2008. Having said that decision is soley based on service medical records which are:

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

01/14: sinus headache pressure behind eyes, stopped up nose (hard to breathe), Headache pain constant and sharp

Antibiotic Prescribed? YES/10 DAYS

09/05: throat, nose and eyes burning, headache, mild body ache, dry mouth, nasal and throat congestion

09/09: sinus pressure headache, body ache, nose and whole face burning

09/12: Presents to TMC with c/c of meds not working after 9 days of sinus pressure

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

02/17: sore throat, nasal congestion and lethargy x 3 days

Antibiotic Prescribed? YES/7 DAYS

04/23: Chills at night, eyes are burning, lightheaded and nasal congested for past week

Antibiotic Prescribed? YES/8 DAYS

08/09: Problem started as runny nose, sneezing a lot, and chills, sinus pain/pressure

Antibiotic Prescribed? YES/7 DAYS

11/29: Nasal discharge; Post nasal drip; Sneezing; Throat Pain

12/14: Sinus pain; Nasal discharge mucinous; Nasal passage blockage increased; Cough

Antibiotic Prescribed? YES/7 DAYS

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

02/25: Sinus pressure, Headache, Body ache, Cold

Antibiotic Prescribed? YES/10 DAYS

06/17: Fever and chills; Headache and sinus pain; Itching of the eyes and eyes watering; Earache, nasal discharge watery, mucinous, nasal passage blockage, sneezing, and sore throat; Myalgia

Antibiotic Prescribed? YES/5 DAYS

Edited August 21, 2014 by abhusal (see edit history)