CUE for Peripheral Neuropathy

[JustGettingStarted]

If I claimed "Neck Problems" when I retired in 2009, and I was diagnosed with the symptoms of peripheral neuropathy during my C&P exam, should I have been awarded peripheral neuropathy in addition to the cervical spondylosis I was rated for?   

Below is the CUE I just submitted along with all the medical records.  I have to say, my new VSO, the local county guy, was a big help.  He said I might have a problem since I originally claimed "neck" and not "radiculopathy", so I attacked that issue head on in my claim.

The claim is now in eBenefits being reviewed.  Hopefully it won't be combined with my other claims, which could take a while although the VA has all the evidence and I have completed all my C&P exams. 

MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR

 I am requesting a motion to revise the date of a rating decision made by the St. Petersburg, FL VA Reginal Office on February 10, 2017 concerning bilateral peripheral neuropathy of the upper extremities.  I am requesting a new date of 1 May 2009.  The decision in question is for myself, JustGettingStarted, VA File Number #########.

 SPECIFIC ISSUE CHALLENGED:  Upon my retirement on 1 May 2009, I was service connected for Cervical spondylosis at 10%; however, I should have also been serviced connected for bilateral upper extremity radiculopathy (peripheral neuropathy) related to the cervical spondylosis. 

 This motion alleges specific errors of fact or law and why the result would have been different were it not for those errors: 

 ERROR:  The VA recognized symptoms of bilateral radiculopathy in my upper extremities during a peripheral nerve C&P exam conducted on 20 July 2009 but failed to provide service connection or a rating.  In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations.  Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).  In addition, the VA failed to apply the applicable, existing regulations or statue at that time.  Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

 FACTS: 

1.  In 2008, when preparing for my retirement physical, I claimed "neck" problems.  My miliary doctor clarified "cervical disc herniations with radicular symptoms" on the same document (Attachment 1). 

 2.  In my 2009 C&P exam it is stated “A Bone, Hand, Joint, Peripheral Nerves, and Spine Worksheet should be completed for this patient” (Attachment 2).  Both the Peripheral Nerve and Spine worksheets say to see the Bone Worksheet (Attachment 3).  On the Bone worksheet, the examiner states “bilateral hand numbness”, “numbness in the dorsum of her forearms”, and “pain radiates into the bilateral arms”.  All are symptoms of bilateral upper extremity radiculopathy.  It is also noted that I was taking Motrin and Neurontin for the nerve pain (Attachment 2).

 3.  On 5 Dec 2016, I had a C&P exam for peripheral neuropathy that states “Chronic neck pain radiating to the left arm and right hand numbness since 2000”.  (Attachment 4).  After this exam, I was service connected for left and right upper extremity radiculopathy and rated 20% bilaterally. 

4.  Peripheral neuropathy is supported by a long medical history documented in military medical records to include MRIs (Attachment 5).  These records were available to the VA during my rating decision in 2009.

In summary, the path to this error is very clear.  My medical records from 2000 to present clearly show signs of bilateral upper extremity radiculopathy supported by x-rays and MRIs.  I claimed this as a neck problem when I retired in 2009 and it was clarified to include “radiculopathy” by my military doctor.  In 2009, the VA ordered exams for Peripheral Nerves, Spine, Hands, and Bones.  When rated in 2009, somehow the radiculopathy was overlooked when it became part of my Bone exam and not reported separately on the Peripheral Nerve exam.  The symptoms continued after this exam and I had the radiculopathy properly rated in 2016 by a VA examiner who states I had the symptoms since 2000 based on the medical records provided to him.  The VA clearly should have provided service connection and a minimum 20% rating for both right and left upper extremities based on all the medical information that was on hand during the 2009 C&P exam.

This request for a new rating date of 1 May 2009 for bilateral upper extremity radiculopathy (peripheral neuropathy) at 20% and meets all qualifications for Clear and Unmistakable Error: 

- The VA had all evidence in hand, including military medical records and a C&P exam, when they did not provide for service connection and a rating for peripheral neuropathy in 2009. 

- The statutory or regulatory provisions extant at the time were incorrectly applied when the VA failed to determine all potential claims raised by the evidence at hand.

- The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.

- The determination is based on the record and the law that existed at the time of the prior adjudication in question.

 I request your favorable consideration in this matter.

 JUST GETTING STARTED

17 July 2017

Five attachments

1.  Military separation physical

2.  2009 VA C&P exam for Peripheral Nerve and Spine

3.  2009 VA C&P Bone exam

4.  Excerpt from 2016 VA C&P exam

5.  Military medical records, peripheral neuropathy

 

 

 

Edited July 22, 2017 by JustGettingStarted

[Oceanbound]

Edit out your personal details.

[JustGettingStarted]

Thank you very much Oceanbound.  I edited it out of the signature block and didn't catch it in the middle.

[Berta]

You do not have to file a Motion , just ask the VA to call CUE on their decision (if it has arrived within the one year appeal period- if this refers to a Regional Office decision.

 

Motions for CUE are filed against the BVA. But I am sure it will be OK! Did you raise the CUE reg citation I have put in the CUE forums on this type of 'go cue yourself" claim.?

One question:

You cited 

Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

Do you have a hyperlink to Look V Derwinski?

It is OK if you dont- as the quote might have appeared with tyhat citation in a BVA decision- and that would make it valid.

I have never found a hyperlink to Look.....then again in those days I had to call COVA, promise to pay them a small fee, and then they would send me by fax the decisions I needed. Boy how things have changed.

Dont forget- if they do not react favorably to the CUE, make sure you file a NOD before that one year deadline runs out.

You are doing a GREAT JOB! I just hope you get someone at your RO who can read.

  

 

  

[broncovet]

Testing

[JustGettingStarted]

Hi Berta,

Here is a hyperlink https://veteranclaimsresearchcases.wordpress.com/2009/03/09/look-v-derwinski-no-90-476/

I guess my claim will be all ready to go to appeal since I haven't been fortunate enough so far to get an RO that can read.

When I sat down with my new VSO and went through this stuff case-by-case, he said if I have to appeal I should go before a judge in DC.  He said I had my stuff very organized and a BVA judge needs to see and hear the stupidity I have been through.  

However, before that happens I will try to find some new evidence and request to present it to the RO personally.

[Berta]

THANKS a lot!

I tried to get a copy of Look when I was in the Gardner moratorium.

Negligence claims filed prior to  Gardner had to be filed under 351,USC, which did not require proven fault on VA's part...just proof of additional disability (due to negligence)

My claim under 1151 was an accrued claim, after my husband died ( what they called Substitution claims these days. I had proven fault but was in the moratorium anyhow.

1151 holds a specific criteria that 351ers never needed. The good part is that all successful 1151 claims hold this recognition of negligence/malpractice in the award letter.

The USA pays settlements without a 'fault' clause.

The 'fault 'aspect only crops up when they fulfill the NPDB reporting mandate.(under a successful FTCA settlement.)...and in 1151 awards.

In my FTCA case they failed to fulfill the NPDB mandate ( and per GAO they did that to others as well) assuring the public would never know how many vets the VA harmed or killed,yet received (or their spouses received )based on malpractice ,settlements from the US of A , under OGC auspices.

All negligence or malpractice claims that were pre Gardner however ( with awards under 351) never admitted to 'fault'.

My 1151 award of 1998 is horrific to read,.a concise rendition of the malpractice that caused my husband's death . My point is that prior to Gardner, there are no documented malpractice claims with the VA unless the also involved FTCA, were settled and OGC actually reported some of them.

Our public ( to certainly include Congress, the Secretary, and the President has no idea of how many vets the VA has harmed or killed.

I already told Congress where that info is, and need to explain it to the Secretary and POTUS again......

they don't have a clue about Gardner and how 351s protected the VA from 'fault'....for decades.

Look V Derwinski  is proof of what I mean.

 

 

 

 

Edited July 24, 2017 by Berta