Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
- 0
CUE for SCM-K For Loss of Use of a Creative Organ
Rate this question
Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
Rate this question
Question
JustGettingStarted
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.
-----------------------------------------------------------------------------------------------------------
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 JustGettingStartedLink to comment
Share on other sites
Top Posters For This Question
8
3
1
1
Popular Days
Jan 9
3
Jan 13
2
Jan 15
1
Aug 31
1
Top Posters For This Question
JustGettingStarted 8 posts
Gastone 3 posts
broncovet 1 post
Navy04 1 post
Popular Days
Jan 9 2018
3 posts
Jan 13 2018
2 posts
Jan 15 2018
1 post
Aug 31 2017
1 post
12 answers to this question
Recommended Posts
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 accountSign in
Already have an account? Sign in here.
Sign In Now