Should I file a CUE?

[Tomahawk]

Background:  I injured my foot in service.  Was discharged after surgery failed to repair it.  I have had multiple surgeries at the VA which have made it worse. 

I was originally granted 0% in 2004 after fighting multiple years for even that.  I appealed and was bumped to 10% in 2005.  Once again I appealed and was granted 30% in 2007.  In their rating decision they state the "evidence  supports a severe left foot disability with included painful and limited motion, with radiating pain and nerve impairment to the foot and lower leg and postoperative scars." 

I was denied acquired flat feet "The VA treatment records documented extensive podiatry and other treatment for your foot problems.  However, the records did not demonstrate a current diagnosis of flat feet or pes planus.

I am currently in appeal for both of these issues. 

I have been going through all of my medical records and I'm wondering whether or not I should file a CUE.  For one thing they are stating they lumped the "nerve pain" in with my foot rating at 30%.  I have been clinically diagnosed by the VA since 2005 with CRPS/RSD.  They did a bone scan to confirm for the C&P exam. The C&P Exam Assessment stated "1.) Complex Regional Pain Syndrome ( Reflex Sympathetic Dystrophy)  2.) Residuals of Post-Operative Surgery, Second Metatarsal Shortening, Arthroplasty of the Great Toe, Second, and Third Digit.  3.) Hallux Limitus Left Foot".  It is my understanding that CRPS/RSD should be rated under 8520 for peripheral nerve.  I should fall under the 60% rating as there is severe "marked atrophy".  My left foot looks like a skeleton, and my left leg has over an inch of atrophy.  Would this be a CUE based on the fact that they should have known to rate it separately under 8520 and instead lumped the "nerve pain" in with my 30% foot? Or is it on me because I didn't specifically file for it?

As for the flat foot.  The radiology report clearly states " Mild DJD of the first MTP joint is noted.  Interphalangeal arthroplasty is noted.  Pes Planus deformity is noted."  Is this report enough to claim a CUE on their findings of no "current diagnosis of flat feet or pes planus"?

[Fat]

Keep fighting TOMAHAWK.

I agree with your line of reasoning.

[broncovet]

Do your medical records show a "diagnosis of pes planus or flat feet"?  If they DO show this diagnosis, then your best course of action may well be to us 38 CFR 3.156 "New and material evidence" to reopen the claim, citing the exam where the doctor diagnosed you with same.  

If your medical records DO NOT show a "diagnosis of pes planus or flat feet", but instead, you have an alternative foot related diagnosis you think is related to service, then you may go ahead and file for the "new diagnosis".  Keep in mind, Veterans are not expected to be experts on all the medical foot ailments in order to get benefits.  "My right foot hurts and has scars" should suffice to cover a variety of foot disorders.  

If/when you did get SC for the "new" foot diagnosis (other than pes planus or flat feet), and you dont like the effective date, you can appeal the effective date citing you applied for a "foot condition" back in 2004.  The VA has hornswaggled Vets, before, by doing just this.  You know..you apply for pes planus or flat feet, and the doc diagnosis you with something else...degenerative arthritis of the foot or whatever.   So, the VA tries not to pay.  I think the CAVC has spanked them on that, because Vets are neither competent, nor are they required to know all the medical terms for problems of the foot.    I do think its better if you apply for "foot pain and foot conditions related to military service", instead of a particular diagnosis, for reasons you just stated.  You should ask for "any" foot related diagnosis, and not limit your befit application to pes planus.  Right now, I can not think of the CAVC case where the Veteran applied for "condition A of the foot" and the doctor diagnosed the Veteran instead with "condition B of the foot" and the Veteran won, because the Veteran need not be a podiatrist or have a podiatrist knowledge of foot maladies to apply for benefits. 

If you are still in the appeal period, its unlikely that "Cue" will help you.  EXCEPTION:  Berta has had good luck "asking VA to cue themselves"  in some circumstances.    Just remember this:

Cue has to be:

1.  Undebatable and not a judgement call.  If you think you deserve 50 percent and the VA rated you at 30%, that probably is not CUE, its probably a difference of opinion in interpreting the VA rating scale.  

2.  The Error in CUE has to be "outcome determinative."   Its not enough that VA forgot to send you a DTA letter.  Yes, they are required to send the letter, but did the VA failure to send you a letter mean you got a lower rating?  Probably not.    If the VA decision misspelled "Pes Planus", that is not outcome determinative in of itself.  

3.  The CUE error has to be based on "The evidence and laws at the time".  Example:  VA did not know about a favorable medical exam from Dr. B.  The remedy here is not CUE, the remedy is to reopen with N and M evidence under 38 CFR 3.156.  

[Tomahawk]

I have a SC "foot" diagnosis.  But it is for surgical crap not the flat feet.  I have flat feet mentioned in numerous physical therapy appointments, as well as by the prosthetics department who have issued me orthotics for it for over 10 years.  And I have the aforementioned radiology report from the VA C&P exam that clearly states "Pes Planus Deformity noted". 

Yes I am still in appeal which is why I was inquiring about whether requesting them to do the CUE is worth it, or if I should just wait out the who knows how many years it will be for that decision before trying to submit for one.

[broncovet]

The "differences" between CUE and a conventional appeal are:

1.  Cue is a "standard of review"...a legal defination that means the error is undebatable (no benefit of the doubt for the Veteran), that it is outcome determinative, and is based on the laws and evidnence at the time.  It is not a mere difference of opinion...differences of opinion or judgement calls will favor VA, not the Veteran on the CUE standard of review. Cue can be initiated at any time.  

2.  A "conventional appeal" must be initiated by the VEteran within 12 months of the decision.  Veteran retains the "benefit of the doubt" and can often submit new evidence at most stages of appeal.  The Veteran can benefit from "new evidence" and often gets the more favorable of "new laws" or laws existing at the time of the error.   

     CUE is used by Veterans almost exclusively when the Veteran did not timely appeal.  As Berta noted, she often does well asking VA to cue themself.  

     When filing a CUE, the alleged error needs to be very specific, alleging the specific regulation that VA allegedly violated that is CUE>  

[broncovet]

You also need to remember this:

  Veteran's disabilities are rated on SYMPTOMS, not diagnosis.  If you had a diagnosis of Pes Planus, but had no symptoms, the highest level of compensation you would get would be zero percent.    Also, if you were already being compensated for "nerve pain" for one foot diagnosis, a second foot diagnosis of Pes Planus would not yield you an additional percentage for "nerve pain" as pyramiding prevents the Veteran from receiving compensation for the same malady twice.  

   The only way you could benefit by a diagnosis of Pes Planus would be if the Pes planus had symptoms OTHER than those for which you are already compensated.    Thus, if Pes Planus caused a limited range of motion, and you were not already comepensated for a limited range of motion, then it could result in additional benefits.

   Based on what you posted, I think you are doing the right thing..appealing the disability percentage.  If the Pes Planus has symptoms other than what you are already being compensated for, by all means continue the appeal.    It would appear there would not be an advantage for you to persue CUE at this time.  

    Its been my experience that MOST of the time, a CUE mostly applies to the effective dates.  CUE generally does not help you in a dispute about the rating percentage as that is simply a judgement call.  

Edited August 16, 2015 by broncovet

[john999]

CUE is for final unappealed decisions.  Have you gotten an independent medical opinion on your feet?  If you are still in appeals an IME/IMO is the best weapon.   There are many posts at hadit on how to use an IME to win a claim.  Your IME comes under the category of "New Evidence".  Without IME's/IMO's I would never have won my major claims with the VA.