Might be doing first NOD - advice appreciated

[JustGettingStarted]

I am considering doing my first NOD. I received 20% for peripheral neuropathy (pain and tingling in my arms and hands) secondary to Cervical Spondylosis (narrowing of the spinal openings in my neck) for both my left and right sides in February 2017. I just received a copy of my C-File that I requested back in July 2016, and it has the C&P exam that was done on me for the peripheral neuropathy. In the C&P exam, I was clearly rated for SEVERE pain on my non-dominant side and moderate numbness and tingling on my dominant side.  

I was given a 20% rating for mild conditions on both left and right side, but from the DBQ the doctor submitted it looks like I should have been given severe to moderate ratings, which would be 40% for my dominant side and 30% for my non-dominant side.

Do I file a NOD and request a DRO review?  

Am I missing a reason why the VA only gave me 20% on each side?  I have attached screen shots from the DBQ.  

Code 8710: Neuralgia of the upper radicular group. Neuralgia cannot be rated higher than moderate, even if it is severe. If the condition is moderate, it is rated 40% for the dominant and 30% for the non-dominant. If it is mild, it is rated 20% for either arm.

This is the quote from my decision package:

"Service connection for left upper extremity radiculopathy (peripheral neuropathy) has been
established as related to the service-connected disability of cervical spondylosis.
● We have assigned a 20 percent evaluation for your left upper extremity radiculopathy
(peripheral neuropathy) based on: • Mild incomplete paralysis of the minor extremity
● Although the lower radicular group and middle radicular group nerves were shown to be
affected, only one evaluation is allowable in this case. This rating is based on the highest
rated nerve.
● A higher evaluation of 30 percent is not warranted for paralysis of the middle radicular
nerve group unless the evidence shows nerve damage is moderate.
● Service connection for left upper extremity radiculopathy (peripheral neuropathy) is granted
with an evaluation of 20 percent effective May 11, 2016, the day we received your intent
to file, with your completed application received on October 29, 2016. VA examination
conducted in support of your claim notes that your noted radiculopathy is related to your
service connected cervical spondylosis."

Edited June 6, 2017 by JustGettingStarted
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[JustGettingStarted]

Broncovet

That is what I am trying to tell you on the CUE stuff - it is all stuff I claimed back in 2009 when I retired.  I was service connected for the conditions, and in one case I didn't get the special monthly compensation I should have and in the other I was rated word-for-word incorrectly.  

I first filed in 2009 for my retirement.  I was dumb and happy when I got my overall 60% until last year when the VA decided to do a re-eval on two of my conditions.  I decided I better get smart on my VA disability and I got through the C&P without a reduction.

So I started going through my old records and looking through everything I claimed and found mistakes.

In 2009, I claimed endometrial ablation and was service connected for it at 0%, but the VA did not give me Special Monthly Compensation for loss of use of a creative organ.  That is a CUE.  You do not have to request SMC, it is supposed to be given to you automatically if you have a condition that warrants SMC.  The VA defined endometrial ablation as a form a sterility in 1998.   I learned on this website that I can CUE SMC from a post done by Berta - thank you very much.

In 2009, I claimed a skin condition and was SC at 0%. My 2009 Explanation of Benefits was word-for-word for an eczema-like condition while taking daily systemic medication which is 60%, but VA gave me 0%.  That is the CUE that was lost by my VSO or the VA recently.  The condition does not go away and my pharmacy records from 2004 to present support it.  They might try, but there is no way the VA can give me the 60% rating that is due without not giving me the CUE on this one.  I have not seen a single BVA appeal where the vet was denied 60% for my condition if it was service connected - and mine is already service connected.

[Berta]

Did you appeal the CUE denial????

I have had CUEs awarded in Years and some in weeks.......

The longest decision I got came after 2 CUES were filed in 2003- and then a different one in 2004, and by 2012 they were set for BVA transfer , but the Nehmer VARO awarded them ( in mere weeks when they worked on my AO IHD death claim.)

Mere weeks---we deal with VARO incompetents and this is a Major reason  why there is a BVA backlog.

My evidence for the CUEs that took 7-8 years at Buffalo RO was the same evidence the Nehmer RO had, and all of it was established in the dead veteran's lifetime. They kept telling me the CUE claims were with a  rating "specialist."  The RO had no "specialist"-if they did it was one of their illiterate employees.

I found that if a CUE is filed prior to a NOD (on the same claim)( to make sure the NOD is timely, they have to work on the claims by date of receipt.

Although I was thrilled to know I was set for BVA transfer , I also knew the Nehmer VARO had to address one of the CUEs for the IHD claim as it had bearing on it, and I reminded the Nehmer VARO that both CUEs were still pending when I filed the AO IHD death claim.

They awarded both of them...one was the SMC CUE. I still have my VAROs letter attempting to get me to believe their ridiculous rhetoric ,to include a regulation they made up yet could not produce any 38 USC, 38 CFR , M21-1MR etc  or COVA/ CAVC citation for it at all. And I sure documented that I asked for any legal reference to support their Bull crap.

When something is legally wrong in a decision, to our detriment and to VA's benefit  ( many  of my CUES were in award letters)

this defeats our ability to properly prepare a NOD....which has a deadline.I raised a Duty to Assist violation with one of my recent CUEs. They violate DTA all the time but one can shape that error into the CUE that resulted from it.

I calling the new Hot Line today to register my request for a response from my letter to Secretary Shulkin, cced to POTUS. I might need to take a week or more off here soon ....to spend time on vet issues as well as other summer work I have to do.

[JustGettingStarted]

Hi Berta,

Thanks for chiming in.  Neither of my CUEs have been denied so far.  I filed both in the last year after going over my decision package from my retirement in 2009.  

I resubmitted the CUE for Eczema-like condition, that was lost for 10 months, within my original Intent to File date.  I got nervous at the 10-month point and followed up with the VA instead of my VSO to find out the VA says they never received it (VSO says VA ignored it).

I filed the second CUE this week for the SMC I should have received when I was service connected for endometrial ablation in 2009.  It was from your blog that I discovered I could file a CUE for SMC - thank you so much.

This website and the podcast have helped me so much.  

The big one is the CUE for the eczema-like condition.  It comes to over $40K in back pay.  Below is what my 2009 decision letter said (I redacted the name of my disease and medication).  What it doesn't say is that for near-constant systemic medication, the rating is 60%.  I have been on constant systemic medication since 1998 and I retired from service in 2009.

“12.  Service connection for [eczema-related condition] .

 Service connection for [eczema-related condition] has been established as directly related to military service.

 A noncompensable evaluation is assigned from May 1, 2009.  A noncompensable evaluation is granted if the record shows dermatitis or eczema involving less than 5 percent of exposed areas affected, and ; no more than topical therapy required during the past 12-month period.  A higher evaluation of 10 percent is not warranted unless there is evidence of dermatitis or eczema involving at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.

Service treatment records show that you were found to have [eczema-related condition] in March 1997.  Upon VA examination you reported that you continue to take [systemic medication] on a daily basis to reduce flares of the condition, which occur once or twice yearly.”

I have read BVA decision after BVA decision, dated before and after my claim, in which the veteran received 0 to 60 percent for my condition--depending on how often they take medication.  I have to be on medication constantly or I have painful flare-ups at least every month.  My pharmacy records at Tyndall AFB go back to 2004, long before I retired, and they fully support my claim.  When I first submitted my CUE to the DAV VSO, he told me he thought we could get a decision in as little as 2 weeks.  I have a number of emails where i requested a status, and he said I wouldn't hear anything until it was decided; I don't think he ever checked.  After finding out the VA didn't have the CUE, I submitted it myself via eBenefits so I would have confirmation it was received.  At first my new VSO said that wasn't the thing to do, but when he actually read the CUE, he said I did it correctly.  I submitted it as a Motion for Revision.  

By the way, I am shopping for another VSO for the St. Pete VARO - any recommendations are greatly appreciated.  I prefer to do the work myself but just need some guidance and a fresh eye every now and then.  :-)

Edited June 8, 2017 by JustGettingStarted
clarification

[Berta]

" I submitted it as a Motion for Revision."

I thought this was a VARO CUE ,not a BVA CUE.

Did you cite the 38 CFR/USC regulation you are filing CUE under?

Can you scan and attach it here? Cover C file # etc prior to scanning it.

"Motion" for reconsideration, or CUE etc etc has to take a simple legal form.....did the VSO tell you that?

I put a template here long ago for that.

Motions are for the BVA. The ROs are not familar with them.

The CUE regulations are in our CUE forum . They must be concise and identify clearly the legal error, what decision it involved and the date of the decision. They must contain info as to why the error was detrimental to you.

I might suggest the DAV in St Petes as I recently had contact with their top honcho and he seemed to know his stuff....that is'he'did....dont know about this rep you mentioned.

 

 

Edited June 8, 2017 by Berta

[JustGettingStarted]

i just learned something new.  The reason I did Motion for Revision was the only CUE examples I found were for the BVA level.  My CUEs are at the VARO level.  

In eBenefits they have listed my two CUEs as increases.  Oddly enough, I have another claim where I requested service connection, and they have listed it as REP for Reopen.  That one will probably be SC at 0% but it was still an oversight on VA's part when I retired and I want it corrected now.

I figure it will be difficult for VA to give me the SMC I am entitled to for endometrial ablation without CUEing it.  The same goes for the Eczema-like condition since it happened 10 years before I retired.

I have attached the CUE I did for the Eczema-like condition.  That is the CUE that is worth the most if I win.  It has been sanitized but should still be very clear on how I attacked it.

Thank you so much for taking a look at this.  I still have more claims to submit.  I need to retroactively claim 100% temporary disability for when I had surgery on my service-connected knee - I am working on getting my physical therapy records so I can show how long I was in recovery.  I am doing the same for my husband because he had surgery on two different service-connected conditions.  We did not know about the 100% temporary disability and were not working so we don't have letters from our doctors saying how long our convalescence was.  I think the VA owes me 2 months for my knee, 1 month for my husband's hand, and 3 months for his shoulder...  Since my husband is only SC for 20%, 4 months of total disability will be significant, but I have to get his medical and physical records before I file.

JustGettingStarted

 

Motion for Cue-REDACTED.pdf

Edited June 9, 2017 by JustGettingStarted
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[JustGettingStarted]

PS - I am on my second VSO from the DAV in St. Pete.  He is knowledgeable, when I can get in touch with him. I was given a second VSO without a request from me.  He is very slow in answering emails and sometimes I never get a response.  He called me once, when I was about to go up the chain to find out why the VA didn't have my CUE.