Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Searches Community Forums, Blog and more

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Available Subscriptions

Question

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 by JustGettingStarted

Share this post


Link to post
Share on other sites

Recommended Posts

Ad

  • 0

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

Share this post


Link to post
Share on other sites
  • 0

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.

  

 

  

Share this post


Link to post
Share on other sites
  • 0

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.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

       
      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 0 replies
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 
×

Important Information

{terms] and Guidelines