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"?

[Tomahawk]

Thanks for the comments broncovet.

My claim is for bilateral flat feet.  Currently I am compensated 30% for "severe foot condition to include nerve pain".   My contention is that the "nerve pain" should have been rated properly as CRPS secondary to my "severe foot condition" as it affects my entire leg, not merely my foot.  And I don't know how the pyramiding works, but I am I believe the non SC foot having acquired Pes Planus should at least be evaluated by the VA as secondary to my SC foot.  However they have never given me a C&P exam for flat feet.

 

john999 I am currently awaiting a BVA hearing.  When I initially filed there was no way I could have afforded an IME/IMO.  And until recently it wouldn't have been an option.  I am now able to afford and have been in the process of contacting places trying to find one willing to do it.