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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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Im sorry to hear of your issues. This case really is not as easy as you think. I only received the SMC K cause I had testicular surgery as a result of infection due to the conditions in OEF. I no longer have use of the L organ and I was only 29 at the time. Good luck and hope everything works out. God Bless

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$9K isn't Chump Change, don't let the Claim Die. If Denied, Appeal Immediately requesting a DRO Hearing. That will give you an additional 2+ years to get the necessary Medical Evidence. If Denied by the DRO, take it immediately to the BVA, another 2++ yrs. A Big A$$ Retro Check might just take the edge off in 2023.

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On 1/10/2018 at 6:05 AM, Gastone said:

$9K isn't Chump Change, don't let the Claim Die. If Denied, Appeal Immediately requesting a DRO Hearing. That will give you an additional 2+ years to get the necessary Medical Evidence. If Denied by the DRO, take it immediately to the BVA, another 2++ yrs. A Big A$$ Retro Check might just take the edge off in 2023.

I know, but I really don't want to take a chance on having VA schedule another C&P exam.  It took me too long to get a rating for gyno problems and I am afraid that if I push this, they will find a way to reduce my recent rating and I will lose my new 100% T&P.  I have had to many bad C&P exams to risk it.  The 100% T&P pay and benefits aren't worth the risk to me.  I do have another back pay issue for a skin issue that I do plan to pursue; there is no way they can reduce that rating and I claimed it in 2009.  That one is worth about $46,000 in back pay and is very clear.

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That's what Adult Decisions are all about, Risk Vs Reward. Your call, then again there is always tomorrow or the next day.

I personally think way too many Vets believe that the VA Raters are just sitting around conspiring of ways and hoping to screw another Vet out of comp.

You decide not to File or Appeal, you lose the possible SMC S (1) and associated Retro, even if it takes 5 to 8 yrs to work thru the Appeals process.

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Since you stated you were 100 percent P and T, you need to understand that you can not be reduced unless you have "actual improvement under ordinary conditions of life".  "Ordinary conditions of life" means, in part, working.  

Its explained in this regulation 

Quote
 3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

Its a common trick:  Scare the Veteran into thinking if he applies for an increase, he will be reduced instead.   This is simply not true, the VA must comply with the regulations, above, or the reduction will be void.  

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