Help? Do I have a CUE

[piscesbaby]

Hi everyone! I'm new to the page and was hoping someone here might be able to give me advice on possible next steps. I've already taken action on getting earlier effective dates for two conditions but because you never how claims are going to go I want to prepare myself should my claim not go in my favor. My story begins in 2007 when I filed my initial claim with the help of AMVETS. The entire VA claim process was very intimidating and I depended heavily on my VSO to tell me what I could/couldn't claim. He went through my STR and told me what I could claim. Ultimately, I was awarded 60% and felt extremely lucky given all the negative things that I had heard about dealing with the VA. Once I received my award I didn't revisit my VA claim until 2016. My conditions had gotten worse and after doing research online and finding the CFR I realized that I was not being compensated fairly and that I was also not being compensated for conditions that I had in service/currently had and were never claimed. I filed my intent to file and then scoured my STR for evidence of current conditions that I wanted to get SC. This post only concerns two conditions that I believe I should have an earlier effective date for so I will only mention those two below. I figure the easiest way to digest my story is by listing everything chronologically so here I go:

 

Sep. 4, 2007: Separate from the Navy

Oct. 24, 2007: File claim for chronic lower back and radiculopathy down right buttocks, also filed claim for SUI, Cystocele and Rectocele 

Jan. 24, 2008: Awarded service connection for lumbosacral strain 10% (claimed as lower back condition w. radiculopathy down right buttocks) Awarded SC for Urinary Stress Incontinence with Cystocele and Rectocele 20% Effective Date: Sep. 5, 2007

 

May.9, 2016: File Intent to file

Jun. 16, 2016: File claim for increase for chronic lower back condition, file new claim for uterovaginal prolapse

Sep. 6, 2016: Awarded increase for lumbosacral strain 20% (claimed as spine condition), awarded SC for radiculopathy right lower extremity (20% even though I did not claim this but it was noted during my C&P exam for increase for chronic back pain), awarded SC for uterovaginal prolapse (30%) Effective Date: May. 9, 2016

Apr-May 2017: Look through old rating decision and claims file and realize that I had claimed radiculopathy on my right side in 2007 claim. Realized that the VA mentioned my uterovaginal prolapse in their decision about my SUI and cystocele/rectocele.

Aug. 30, 2017: Visit Baltimore RO with NOD in hand to request earlier effective dates for my uterovaginal prolapse and radiculopathy, they stamp it and then tell me that I need to file a new claim not a NOD. They told me that I can't appeal a decision that they haven't issued yet. They rip up my NOD (which I still have) and provide me a form 21-526ez where I request earlier effective dates.

Sep.6, 2017: I receive a letter from the RO stating that I filed my NOD on the wrong form. This was confusing because I didn't file a NOD because the RO told me that I had to file a new claim for the EED. 

Sep. 16, 2017: They add the new claim for earlier effective dates and I can see it in E-benefits. They combine it with a current claim that I still had pending for something else.

Sep. 26, 2017: (decision on uterovaginal prolapse and radiculopathy become final)

Oct. 6, 2017: My claim on something else is completed and they completely ignore the claim that I filed for earlier effective dates

 

Mar. 6, 2018: VSO fills out another claim requesting EED for uterovaginal prolapse, and radiculopathy.

Claim is currently at preparation for decision

 

I believe that I'm entitled to earlier effective dates because 1) I claimed radiculopathy on my right side in 2007 and they combined it with my back pain in 2007 and issued me one rating. My symptoms are exactly the same now as they were in 2007 so why were they able to issue me a seperate rating in 2016? I was diagnosed with sciatica/piriformis syndrome in service and I have radiculopathy that originates in my buttocks and goes down my right leg.  2) I didn't claim uterovaginal prolapse because I didn't know that I could but the VA knew about it and mentioned it in their Rating Decision narrative for SC for my SUI and cystocele/rectocele. Everything that I read says this amounts to CUE because they did not "sympathetically read my claim and determine all potential claims raised by the evidence". I was told by my VSO that they were supposed to invite me to claim that condition which they never did.

 

What do you guys think? Had the VA issued me ratings for those two conditions I would have been awarded 80% instead of 60%.

Edited March 25, 2018 by piscesbaby
typo

[Buck52]

I think a lot of it is left up to the actual rater, these raters have medical manual's they use for proper protocol  and a lot of times they do infer different parts of the claim to different part of the disability,  a good experienced rater will.

( mostly in secondary claims)  and if they don't read up on it or understand it they either refer it out to other R.O.'s or be denied  and a lot of times the other R.O.'s can't figure out what to do either  this all leads to denial.  but always keep your appeal going no matter what until you get the decision you want.

Veterans must make their claim clear and well grounded and spoon feed some of these raters as well as the C&P Examiners.

 but Hamslice is correct  they don't give it to you unless you claim it.

Remember CUE you have no help with the VA, the benefit of doubt and the duty to assist is out the window  and if the CUE don't change the outcome of a decision   it's not a CUE.

Just remember to file your 21-9058 NOD in a timely manner this keeps your appeals alive and active.

your 21 526ez is for filing compensation or increase to a existing disability that's been S.C. and Rating given  even if 0%

The NOD form contains blocks for each issue of contention (the medical conditions for which you filed the claim), for example, knee condition or kidney stones. Only list the conditions on the NOD where you disagree with the rating. For example, if you were rated for three conditions and only disagree with one decision, only list the decision you disagree with. Then check the block indicating what you disagree with (service connection, the rating level, or effective date).

The most important section is the narrative to explain why you feel VA incorrectly decided your claim. Don’t leave this blank. It’s entirely possible that VA missed something, and if you don’t point it out, VA will never know. Tell your story, but be clear and concise. If you need more space, add additional pages and documentation, such as private medical records, to make your point.

As explained above, there are three primary issues with your claim decision that you can disagree with: service connection, effective date and evaluation of disability (rating percentage). There is also an option for “other” if these are not appropriate

Edited March 25, 2018 by Buck52

[Carl the Engineer]

I can only comment on one thing.  Just because the VA see's it and comments on it, they do not have to compensate for it unless it was claimed by you.  They can, but do not have to.

Case in point, the VA (2008) reads a 2004 x-ray of your spine for your (mine) claim for lower back pain and neck pain.  In the x-ray, along with the findings for your back and neck, it states that you have an enlarged heart.  If you don't claim heart disease, the VA is not going to give it to you.  As they didn't in my case until 2016 when I claimed it, using the 2004 x-ray.

I have a claim going forward soon.  Part of it will be for arthritis in my right ankle, new claim secondary to right foot plantar facsiitis.  I have service connected plantar fasciitis in my right foot and I did file for an "increase" in 2016.  It was deffered twice to two different RO's and it was ultimately denied, but in the exams the examiner asked about the right ankle arthritis, was it caused by the plantar facsiitis?, did it occur in service?, and is it rated seperately than the plantar fasciitis?  All three times the examiner opined in the affirmative.  No mention in the decision letter.

Hence, if you don't ask for it, you probably won't get it, even if they see it.

Someone else will have to tell you whether it's a cue, but I don't think so,

Just sayin,

Hamslice

 

Edited March 25, 2018 by Hamslice
cause I can

[Buck52]

what I would do is get new & material evidence for increase,  with medical records to support this...and look up the proper ratings criteria set forth in the CFRs per each S.C. CONDITION CLAIMED.

  Recite these regulations back to them and state something like I request all my S.C. CONDITIONS BE PROPERLY RATED TO THE FULLEST EXTENT ALLOWED BY LAW SET FORTH BY THE 38 CFR  & (Name that # Regulation.)

This should have  be done with the first initial claim.  but you can do it in your NOD.

[broncovet]

The general rule for effective dates is the later of the "facts found" or the date you applied.  

This means you cant get an effective date earlier than the date you applied, with a few exceptions.  

I suggest you carefully read over this and see if any of the exceptions  applies to you, since we have not read your file and dont know if you may qualify for an informal claim, for example:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

The "ITF" is not included in the purple heart's training, because I dont think the ITF was used back then.  

Chris Attig, an attorney who represents Vets, also has a good article on effective dates that would likely be worth your time, and its a little more up to date:

https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/

Personally, Im currently in appeals for effective date(s), and I did so as I spotted one of Chris Attig's suggestions that I thought applied to me.  

I hired an attorney "virtually free" because I hired the attorney at the right time:  Just after a BVA denial.  You see, if an attorney can find "errors" in the Board decision worthy of taking to the CAVC, in almost all cases your attorney fees will be paid by EAJA.  

This also happened to me earlier as well.  I hired an attorney who discovered legal errors in my board decision.  I hired her, she got a JMR (Joint motion for remand, its when the VA agrees with the attorney there are error(s) and consents to a remand).  At that time, even tho it was a remand and I didnt get money, my attorney got paid about 6000.00.  You see, later when I did win benefits based on the remand, I did not have to pay that 6000, as attorneys can not collect both from you and EAJA except up to the amount you agree upon, which was 20 percent.  So, I did have to pay a few hundred as my award actually exceeded 30,000 dollars.  (30000 times 20 percent is 6000).  I only had to pay 20 percent of that which exceeded 30,000 dollars.  

[Berta]

If the used the wrong diagnostic code and/or the wrong percentage in a past VA decision, yet they had, in their possession, medical proof that your rating should have been higher, that would be a basis for a CUE claim.

We have considerable info on CUE in the CUE forum.

You need to go by the rating criteria and diagnostic criteria at time of the alleged CUE for the specific disability(ies) you believe they low balled you on.

 

[broncovet]

I went in to that rather long explanation of attorney fees to suggest you appeal to the BVA, THEN if that is denied, hire an attorney which you can do for often almost or nothing.  

You see, the CAVC regurarly grants EAJA fees to Vets who win and are represented by an attorney.  (Yes, even remands).  

So, my advice is to keep appealing until a board decision then hire an attorney if denied at the BVA level.  I suggest basing your appeal on one of the links, above.  

Edited March 25, 2018 by broncovet