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JustGettingStarted

CUE for SCM-K For Loss of Use of a Creative Organ

Question

Berta

Here is the CUE I did for SCM-K.  I know now that it does not have to be a Motion at the VARO level, but I will be ready to do an appeal if the VA does not approve my CUE.  :-)  I probably won't get a decision until early 2018 because I have filed several claims in conjunction with this one, including the two other CUEs.  

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MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR (CUE) FOR NOT PROVIDING SPECIAL MONTHLY COMPENSATION FOR LOSS OF USE OF A CREATIVE ORGAN

I am requesting a motion to revise a rating decision made by the St. Petersburg, FL VA Reginal Office on August 11, 2009.  The decision in question is for myself, Just Getting Started, VA File Number ######, with the Rating Decision date of August 11, 2009. 

ERROR:  In a 2009 rating decision, the VA recognized service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation at 0%.      However, the VA failed to provide Special Monthly Compensation (SMC) for loss of use of a creative organ per 38 U.S.C. 1114(k),  “When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted.”  I request Special Monthly Compensation for loss of use of a creative organ be provided as of May 2009.

This request meets all the requirements of a CUE.  A CUE exists if

1. There is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. 

I should have been awarded Special Monthly Compensation for loss of use of a creative organ when I was service-connected at 0% for endometrial ablation.  In the 2009 rating decision, it very clearly states I had undergone endometrial ablation for relief of other conditions and I was given 0% service connection.  When the VA service-connected my endometrial ablation, they were required to provide SMC for loss of a creative organ at that time. Below is the exact wording from the rating decision package (attached):

7.  Service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation.

Service connection for early uterine fibroids status post hysteroscopy and uterine hydrothermal endometrial ablation has been established as directly related to military service.

A noncompensable evaluation is assigned from May 1, 2009.  A noncompensable evaluation is assigned for symptoms that do not require continuous treatment.  A higher evaluation of 10 percent is not warranted unless continuous treatment is required.

Records from Panama City Surgery Center show that following pelvic ultrasound on September 6, 2006 revealing early development of uterine fibroids, you underwent dilation and curettage and uterine hydrothermal endometrial ablation on November 2, 2008, following symptoms of menorrhagia, abnormal uterine bleeding, and cramps.  You reported that the procedure resolved your symptoms.  Upon VA examination you gave our examiner a history of onset of hot flashes about 2007, worse in 2008, and having been prescribed Prozac with good response.  Our examiner diagnosed dysfunctional uterine bleeding and early uterine fibroids development (per pelvic ultrasound August 9, 2006) status post hysteroscopy and hydrothermal endometrial ablation, and hot flashes due to menopause.”

2.  Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

The VA failed to follow procedural directives when they did not provide Special Monthly Compensation under §3.350  Special monthly compensation ratings, rates of special monthly compensation stated in this section are those provided under 38 U.S.C. 1114.  Loss of use of a creative organ is included under this statute to include “loss or loss of use of a creative organ resulted...from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted”  In the 2009 rating decision, it clearly states my endometrial ablation followed “symptoms of menorrhagia, abnormal uterine bleeding, and cramps”.  This clearly comes within the scope of the statute.

3.  VA overlooked material facts of record, or VA failed to apply or incorrectly applied the appropriate laws or regulations.

In this case, the VA clearly failed to follow the appropriate laws or regulations.  The VA recognized the endometrial ablation as being service connected and should have provided Special Monthly Compensation as a result.  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 the laws at that time, endometrial ablations had already recognized by the VA as a form of sterility for many years.  For example, in 1999, BVA Citation Nr: 9914661 states:  “ A VA medical opinion in February 1998 stated that endometrial ablation usually resulted in sterility.  However, if a patient did become pregnant following such a procedure, it was highly unlikely that she would have a normal pregnancy and delivery.”  (attached)

4. The VA had all evidence in hand when they made their decision in 2009. 

The 2009 decision clearly shows the VA had all medical evidence in their hands when they allowed for service connection at 0%.  This request is not based on new evidence.

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

The error resulted in a loss of income of approximately $100 a month for over 100 months. 

This request for Special Monthly Compensation meets all qualifications for Clear and Unmistakable Error.  I request Special Monthly Compensation for loss of a creative organ be backdated to the date of my original request of May 2009.

With all due respect,

Just Getting Started

Edited by JustGettingStarted

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Deleted - This was supposed to go under a different cue.  Oops.

Edited by JustGettingStarted

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This claim is getting interesting.  According to my VSO, VA was doing up a letter for this claim (but now it is delayed by some of my other claims).  In the draft, it said I was being increased from 0% to 30% on my uterine condition, but I was being denied SMC-K because there is no evidence my endometrial ablation was service connected (scratching my head since the endometrial ablation happened in 2006 while on active duty and I was service connected 0% when I retired in 2009).   So what the heck is the 30% gyno increase for???

If the VA does increase my gyno to 30%, perhaps I will be able to CUE it back to 2009 since all that is based on events that happened before I retired.  I haven't been treated for any gyno issues since I had the ablation in 2006.  Or maybe, since my claims are back in the "Gathering of Evidence" stage, the VA will figure all this out, cancel the 30%, and just give me the SMC-K they should have given me in 2009.

JustGettingStarted

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I got another email yesterday concerning several conditions including SMC-K for loss of use of a creative organ due to endometrial ablation.  Here is what the VA rep said:

"A review was also done regarding your endometrial ablation and whether SMC K was warranted.  Unfortunately, endometrial ablation without the removal of the uterus or ovaries, does not meet the requirements for a grant of SMC K.  Our rating decision dated October 1, 2017, discussed the reasoning for the denial of SMC K."

My response:

" There is precedence for awarding SMC-K for endometrial ablation.  BVA Citation Nr 1026353 states “Likewise, based on the objective medical evidence of record, the Board finds that the Veteran's disability is not for consideration under the rating criteria of Diagnostic Code 7618, as the evidence of record fails to show that her uterus has been removed.  While the Veteran's ablation has rendered her sterile, she has been awarded special monthly compensation for the loss of use of a creative organ.  The ablation, while destroying the endometrial lining of the uterus, has not caused the removal of the uterus, including its corpus as required for consideration under Code 7618.   In addition, BVA Citation Nr 9914661 states “A VA medical opinion in February 1998 stated that endometrial ablation usually resulted in sterility.  However, if a patient did become pregnant following such a procedure, it was highly unlikey that she would have a normal pregnancy and delivery.”  It is medical fact that pregnancy after endometrial ablation is life-threatening to both the mother and child."

I will keep you posted if there is another response.

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SMC-K was denied again.  The VA is requesting more medical evidence.  I have done up a medical opinion letter for the doctor that did my surgery and dropped it off at his office today.  The receptionist was very nice and said she would give it to Medical Records to pull my file.  I told her that may not be necessary because I had attached copies of everything including my operation report.  She took one look at the file and commented that I was very organized and she really appreciated.  She is supposed to call me when the letter is signed.  

I am also going to have my spouse do a letter that states we were told I was not to get pregnant once I had the surgery.  

If this doesn't work, I'll have to do a NOD I suppose.

JustGettingStarted

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Has your Private or VMC OB-GYN Specialist, recently or in the past, opined with Clinician Notes or a written statement in support of your pleadings regarding your "Loss of Use of creative organ?"

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