Cue On Original Claim

[saxman]

Hello everybody! I'm knew to this form so please bare with me if I am posting in the wrong form.

First some of the details on my CUE claim: I filed my original claim back in 1992 for Sarcoidosis and Ulnar nerve entrapment, I was awarded 30% for my Sarcoidosis but they never mention or adjudicated the Ulnar nerve entrapment. I took the 30% and never looked back until years later I started having problems with my wrist again. So I was told to file another claim and I did and this time they granted SC with a effective date of the second claim. After I was awarded for my wrist I filed a CUE for an effective date of the original claim.

Do I have a CUE for an effective date of the original claim?

Thanks,

saxman

[Berta]

"I was awarded 30% for my Sarcoidosis but they never mention or adjudicated the Ulnar nerve entrapment."

"I did and this time they granted SC with a effective date of the second claim."

Do you mean they did adjudicate and award the ulnar entrapment?

Of course you are thinking (and so am I) the EED should have been in 1992 as that older claim was still 'open'. Was the EED the date of the re-opened claim for the claim they never adjudicated in 1992?

"After I was awarded for my wrist I filed a CUE for an effective date of the original claim."

GOOD. As long as the ulnar entrapment was at a ratable level ( 10% or more) in 1992, you certainly have a very valid CUE.

There is plenty of info here in our CUE forum.

There are key issues to cover in filing a CUE.

You probably covered them all, citing the CUE reg citation, and referred and enclosed a copy of the 1992 decision.

This sounds good! What rating did they give you in the recent award?

Anytime a vet gets a SC rating for something VA denied in the past , they should consider CUE regarding the older denial.

It just makes sense. If VA SCs something directly due to service ,say in 2014...and had denied the same issue say in 1995, they most likely had committed a CUE in the older decision ,if the disability at that time was at least ratable at 10%.

Are you still in the appelate timeframe for the recent award?

[Berta]

One other question.....did you raise the point with them in the CUE that the 're-opened' claim was technically still an Open claim?

That fact alone, from what I understand here, should set you up for a better EED as well but I am glad you filed the CUE claim.,even if you didn't mention it.

Sounds great.... even 10% from 1992 to date of their award for the ulnar problem, is still a nice chunk of change that VA owes you, if this CUE succeeds.

Welcome here and thanks for doing some VA 101 homework. It is often what all of us have to do because even in awards, VA makes many errors.

[carlie]

Can you post exactly what your original claim listed for conditions

and exactly what was stated in the rating decision in either the narrative

or Reasons and Bases Section.

Omit your name, claim #, etc . . .

[saxman]

Thanks Berta and Carlie for your replies.

Beta they gave me a 10% rating and I filed the claim Aug 2013 and was awarded June 2014. I'm working with a DAV representative who filed the CUE and all other recent claims and VA paperwork. I don't know if my nerve entrapment was compensable or not back in 1992. Yes Berta the EED of the CUE claim was for the 1992 original claim. If my claim was noncompensable in 1992 and become compensable at a later date how would I know if they never adjudicated the claim?

Carlie the condition listed on my 1992 claim was Sarcoidosis and Ulnar Nerve Entrapment at left wrist. The claim was filed while i was still on active duty and just two months before I got out of the service. The award letter stated that " The evidence establishes the following service connected conditions: Sarcodosis"

The other thing with the claim is because I ran out of room on the form I stated my Ulnar Nerve Entrapment in the treatment section of the form as well as the Sarcoidosis.

Thanks

[saxman]

Oh Berta they did not adjudicate the nerve entrapment claim back in 1992. When we filed the CUE in June we did not mention re-open claim. Will this be a problem?

[carlie]

Oh Berta they did not adjudicate the nerve entrapment claim back in 1992. When we filed the CUE in June we did not mention re-open claim. Will this be a problem?

I'm not Berta - but heck no - if this issue has been left open without a denial or decision since 1992 -

I wouldn't even breathe the words "re-open", at least not for now.

Editing to add:

If the "nerve entrapment" issue has remained open without a decision since 1992 -

I personally do not see where you can submit an acceptable CUE on it as no

decision has ever been made and no decision on this issue has ever become a final decision.

Personally, I would just write the VBA - hey - I've been waiting on your decision for

SC of my nerve entrapment since 1992, I continue to have this medical condition

and feel SC and compensation is long past due.

I would look in Part 4 and see what evaluation my medical evidence supports, make a copy

to submit with it and tell them I feel SC at ___% is warranted by the evidence of record

with an effective date of XX/XX/1992. If this is done I would be in agreement that this

issue is completely satisfied.

My firm belief is that the decision makers do like to see the quickest way to

completely satisfy issues,as they know it won't come back as appeal leading to

someone reworking the issue and getting a number off the stats.

jmho

[saxman]

Carlie, the decision was made when I filed the second claim Aug 2013 and they awarded me 10% for the nerve entrapment, and then I filed a CUE for an earlier effective date than aug 2013. I'm asking for an effective date of Nov 1992 the date of the original claim of the nerve entrapment.

[Philip Rogers]

If the original claim was never adjudicated, back in '92, that claim remains open and it is not a CUE. You merely have to write them and request that they now adjudicate the original claim, that was filed in 1992, as Carlie stated.

pr

[Berta]

"if my claim was noncompensable in 1992 and become compensable at a later date how would I know if they never adjudicated the claim?"

Right..I get your point...You wouldnt know because they violated your rights by failing to make a decision on the ulnar nerve.

For some reason I think I replied to you under a different post you made the other day.........

I thought you said the VA had "re-opened" the older claim,......

In any event you were denied the ability, even if they awarded at "0" in 1992, to appeal that rating then.

I also believe that your EED would be the day after your discharge.

This is what I think VA will do.....adjudicate the older claim, giving you time to send them any evidence you have that would warrant a rating of at least 10% for the 1992 nerve claim. Then along with the evidence and the fact that you have a rating now, they will possibly do a Fenderson rating....meaning they might stage the rating from ) for a few years at "0" % to 10 % for a few years, based on any evidence prior to the new claim you filed (then again maybe not)
or they might keep the rating exactly how it stands now, with the EED still remaining at the 2014 rate. Which sucks.

I am glad the CUE was filed because they did not give you appeal rights or anything.

This claim was filed in the days when VA could say a claim was "not well groubded" and then deny it.

I am thinking too that if VA said they "re-opened" the claim recently...thought I saw that in a different post here the other day......they now have to send you a VCAA letter and that would open the door to get this squared away.....

They dont send VCAA letters on CUEs however.

I suggest (you probably did this already) to look over your SMRs and post service med recs, to see if in fact the present 10% is correct and if it should have been at least at 10% in 1992.

The Schedule of Ratings links here will also show you the actual rating criteria for this disability.

[Berta]

sorry for double post...cant delete or edit...wind hitting my PC dish.....

dont know if this will come through

This vet succeeded in getting a compensable rating of 10% on appeal for ulner nerve entrapment in 1997:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp97/files3/9728084.txt

In this decision the BVA mentions the ratings in 1996 , surely the same ones you would find in the VA Schedule of Ratings :

"As previously mentioned, a 10 percent evaluation has been
assigned to the veteran's postoperative ulnar nerve
entrapment pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code
8516. Such an evaluation contemplates mild incomplete
paralysis of the ulnar nerve. The next higher evaluation, a
30 percent rating, requires moderate incomplete paralysis of
the ulnar nerve. "

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp96/files3/9627038.txt

This is a long but more recent BVA decision in which they define 'incomplete paralysis":

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files4/1226780.txt

I am not a doctor but wonder...do you also have a diagnosis carpal tunnel syndrome?

If so is it possibly due to the nerve impingement.?

A friend of mine, (USAF Ret.) took me to Elmira NY the other day.
He gets 10% for a SC back injury and has developed knee problems and also VA diagnosed him with severe carpal tunnel syndrome and he told me the doc said the CTS is from the back injury and some sort of nerve impingement.
.
I have been after him for Years to file for TDIU because he claims he was on FERS solely for the back problems,and also gets SSDI solely for the back, but keeps saying he wants the backlog to claim down and then he will file....

and I explained again how he is losing potential comp by doing this...comp that would would give him potential CRDP as well. Oh well.

But my point is I dont know exactly what kind of impingement he has and if he remembered what the VA doctor really said...he definitely had problems keeping both hands on the wheel, for this 40 minute trip and then helped me get some HT pads out of my jeep that were lightweight but I could see it was hard for him to grasp them and he had problems trying my new weed wacker out due to the CTS..

I guess my long point here is .he could never work again with such limited use of his hands, in addition to the SC back problem, and this might be all due to an impingement of a nerve. I am surprised the VA ratings don't go beyond the 30% but maybe there could be secondaries too ,to the impingement that could be claimed.

[Philip Rogers]

Whatever you do don't let them re-open an already "open" original claim. If they do that you will lose your original claim date. They're slippery, so you have to be on your toes, as you can see by missing that non-adjudicated open claim.

pr

[carlie]

Carlie, the decision was made when I filed the second claim Aug 2013 and they awarded me 10% for the nerve entrapment, and then I filed a CUE for an earlier effective date than aug 2013. I'm asking for an effective date of Nov 1992 the date of the original claim of the nerve entrapment.

OK - so when you "filed the second claim Aug 2013" did you submit additional evidence then or was there

a C&P done ?

Your Rating Decision that awarded 10% for nerve entrapment - is this when SC for nerve entrapment was first

warranted to be SC'd ?

How about posting all of and exactly what is stated in the Reasons and Bases Section for nerve entrapment,

to include everything stated about SC for it, the percentage evaluation for it and the effective date for it.

Without this there is no complete understanding.

jmho

[lotzaspotz]

Can't he just file an NOD based on the effective date? Would that not be simpler? Maybe I missed it, but if he has proof of filing that claim back in 1992, it should be included with the NOD. Even they should be able to figure out that they forgot about it.

[Philip Rogers]

They would probably ignore the NOD because the '92 claim was never decided and still remains open. jmo

pr

[lotzaspotz]

Philip, the ulnar nerve entrapment claim was originally filed in 1992, but not adjudicated until the veteran filed another claim for the same condition, and it was that second time that the VA awarded SC, only with the later claim date. Why could he not file an NOD for an earlier effective date back to 1992?

[saxman]

I did file a NOD for an earlier effective date of 1992 along with some other condition that was denied when I filed the second claim aug 2013 for the nerve condition. I still have a copy of the original claim.

When I filed the second claim the only thing done was a C&P exam because all the evidence was in the original claim. The original claim contain a PEB and MEB from active duty and that's all the evidence they needed to award me the 10% when I filed the second claim aug 2013.

[Berta]

Lotzaspots asked:

"Why could he not file an NOD for an earlier effective date back to 1992?"

As PR and I understand this , it is because the claim is still open and he has never received a denial, there is nothing to NOD on that claim yet.

Saxman said "The original claim contain a PEB and MEB from active duty and that's all the evidence they needed to award me the 10% when I filed the second claim aug 2013."

Yippee!

If they had the MEB PEB stuff in 1992, this means they violated 38 CFR 4.6 in the 1992 decision ( a CUE)

but it sounds to me that they might ( a big might) get this right without dealing with the CUE.

If the VA didnt have the MEB PEB stuff then this additional evidence could retrieve the 1992 EED claimed under 38 CFR 3.156, as to newly discovered service records.

[saxman]

I did ask my DAV rep if they had my SMR with the PEB and MEB and he said yes! Thanks Berta.

[Philip Rogers]

I wouldn't believe anything your DAV rep stated. If it can't be read, it wasn't said.

pr

[Philip Rogers]

lotzaspotz - as Berta stated, you can't NOD a claim that wasn't adjudicated. They probably took the second claim as a new claim, when they awarded him/her 10%, in 2013. It can't be a CUE because nothing was ever done w/the original claim. It easiest just to have them decide the original claim, which they may award or may deny. Until something is done with that, nothing else can be done regarding that original claim.

pr