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

[FormerMember]

<<<<<<I've heard that SMC will only be back-paid for one year.>>>>> Where do these rumors originate? What a hoot. No, My dearest JGStarted. SMC is payable from the date it can clearly be shown medically that you are entitled to the SMC rating. I'm doing one for r(1) in Phoenix as we speak. VA tried to say we blew through the one year limit to file a NOD for it. I had to call them up and explain it doesn't need a 526. The attorney coordinator in the Director's office  was a rater and had no clue how SMC worked. He'd never even written a grant for an r(1). 

I refiled him for Parkinson's @ 100% and asked for LOU of lower extremities and the SMC (o) whammy on top of it. He's on for an early August c&p. When they finally give me the r(1), I'll pop the doctor's letter from last Halloween (2016) on the LOU for the effective date. I may even try back to 2011 depending on what I can find in the c file. It's fairly large at 3,200 pgs. 

Win or die.

[Carl the Engineer]

Love the "Earl Sheib" reference.

Just sayin,

Hamslice

 

[FormerMember]

$99.95- guaranteed customer satisfaction. Nationwide. They were the cat's pajamas back in the sixties in Virginia before I left for the SEA Olympics in 69.

[JustGettingStarted]

I noticed a change in eBenefits under "Needed from Others".  I called VA and they are scheduling me for another C&P exam.  This is really unnecessary!  I just had a C&P for PN on 15 Dec 2016 where I received 20% bilaterally.  The examiner even wrote on the C&P that I have had PN since 2000 - long before my retirement date in 2009.  This exam is a real waste of time since everything the VA needs to CUE my date is already in my files.  It just seems to be another one of the endless delay tactics used by the VA.

 

I am not worried about losing my current rating.  I am seeing a chiropractor and massage therapist every 1 to 2 weeks, and I am under the regular care of a neurologist.  I had just started the process to go back in for neck injections again because the ones I had 6 months ago are wearing off.

 

My current estimated decision date is now May 2018.  It slips every time they add more exams.

[JustGettingStarted]

Hi Berta,

I used one of the contacts you have me and they apologized for two unnecessary C&P exams, canceled my new Peripheral Neuropathy exam, but said I still have to go to another skin exam.  At least that is progress.  In addition, I am glad they had a complete review done on all my claims.  I have 3 CUEs in the works - you've seen what I've submitted, plus I am trying to get service-connected for conditions at 0% that I should have received when I retired in 2009.  On the PN, the last exam I had said I had it since 2000, and I retired in 2009 - since that is the exam they will need to use for my CUE, along with the one in 2009 that said I had PN, I really have my hopes up that the CUE will be approved this winter or spring, along with the two others.  Here is the letter I got from VA when I complained about the unnecessary exams:

"Good morning,

 I do apologize for the delay in getting back to you.  I did have a full review of your file conducted so I could appropriately respond to your concerns.  That review revealed that you have also submitted seven additional claims, some of which did require examinations. 

 You are correct, however, that not all of those examinations were necessary.  The exams for your gynecological and left knee conditions were not required and we apologize for any inconvenience you experienced in attending those examinations.  Additionally, the peripheral neuropathy examination you have been scheduled for will be cancelled.

 We have requested an additional examination for your skin condition because of your statement that the report of the examination conducted on May 16, 2017 did not consider all of your medications.  A new examination is needed so an examiner can review all of your medications and specify which skin medications are taken for which skin conditions.  You will be notified of the date of this examination. 

 Thank you for bringing your concerns to my attention."

[Berta]

Yippee! So far so good!!!!!

I will go over all of your past posts, as soon as I have time, to see if there is anything I can add...but you were, as the VSO said- Very well organized and I think that is always a big part of the pathway to success!