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

[Berta]

I should add to my reply- if you have a disability that is not listed at all on the rating sheet, and subsequently becomes either a 1151 or direct SC disability, and they had medical proof when they made the decision that did not consider that disability , that too is a CUE, if the disability raised to a 10% level when they missed putting it onto the rating sheet.

MY SMC and IHD CUE is explained in the CUE forum.

CVA was rated at 80% but should have been at 100% by virtue of all medical evidence VA had ( 1998 DIC decision)

IHD was never rated  or SCed under 1151 or direct SC -until Nehmer  award, going back to 1988 , and missing from the 1998 decision.

You will need to produce a copy of the past rating decision that holds the CUE to VA if you file CUE.

 

 

 

 

[Buck52]

I agree with broncovet about the attorney and attorney fees some good points to consider as well as Ms berta's... in these post above.

I think it would be in this veterans better interest to seek out an experienced attorney at this point. vs going it alone. If he files a CUE by himself VA will find some reason to be denied .

And I am not sure you can disagree with a CUE decision if you don't have probative evidence or new & material evidence for the Board to consider.?

Edited March 25, 2018 by Buck52

[piscesbaby]

Hi everyone! Thank you so much for your replies. You all have a lot of good info and I really want to address all of your responses which is going to take me a little bit but one thing I want to address is that before my decisions became final this past September, I went to my Regional Office to appeal my effective dates. The rep took my NOD and stamped it. We proceeded to talk and she said that appeals are taking more than 3 years. Another VA rep walked by and joined the conversation. He told me that I was filing the wrong form. He said that because I never asked for an earlier effective date, I couldn't appeal it. He said "you have to claim it first and then appeal it if it doesn't come back in your favor." He said you can't appeal a decision if they haven't made a decision on granting you an earlier effective date. The VA rep then ripped up my NOD form, and gave me a form 21-526ez and then attached the rest of the paperwork that I had (my updated claims file shows that they have it). I am mentioning this because I feel like it is significant. I still have the ripped up form, stamped by them before my appeal period expired, and can prove it. My appeal period is over, I don't have many options and I only filed a claim requesting earlier effective dates because that is what my regional office told me to do. Most recently, my VSO used the exact same form, 21-526 ez, to ask for earlier effective dates. So what is right and what is wrong? I don't know what the correct procedure is but I know that the VA ripped up my NOD and directed me to use a different path than appealing. 

 

Also, is there a way to upload images here? I wanted to upload my rating code sheet after a comment from Berta. My 1st rating code sheet only shows one diagnostic code that combines my back and radiculopathy. My second rating code sheet has two separate diagnostic code sheets, one for my back and one for the radiculopathy. 

Thank you all for your time. I will post another comment later but wanted to issue a quick reply

 

Edited March 25, 2018 by piscesbaby
a

[Berta]

You can scan and attach VA decisions here. Cover your name and C file # prior to scanning it.

The Choose file button is below.

Make sure we can see the date of any decision. I am totally confused already by your situation.

We cannot file a NOD if the VA has not made a formal decision yet.

The proper NOD form is here :

 

https://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf

 

 

 

[piscesbaby]

I'm so sorry about the confusion, Berta. I was responding to the suggestion that I file an appeal for earlier effective dates. I was trying to explain that I would have appealed but my RO told me that I couldn't appeal because there was nothing to appeal. The VA instructed me to file new claims specifically asking for earlier effective dates for the two conditions. I'm going to try to upload some of my stuff and hopefully that will help convey what I'm trying to convey.

 

This is from my initial claim in 2007. I claimed lower back condition and radiculopathy

This is my rating decision from 2007 where they combined the back pain and radiculopathy

This is the diagnostic code they used in 2007

 

In 2016, I filed for an increase for my back. I was increased to 20% but they also added radiculopathy which I hadn't asked for. My radiculopathy was noted again as it has been in 2007 but this time I was awarded a seperate rating for it.

This is my rating code sheet from 2016. I got an increase for my back AND a seperate rating for my radiculopathy (remember I also claimed this in 2007 but they combined it with my back in their original decision)

 

Uterovaginal Prolapse

I filed a claim for stress urinary incontinence and cystocele and rectocele in 2007. They combined everything but if you notice in this rating decision, they are also aware of my uterovaginal prolapse (2nd sentence from the bottom)

 

In 2016, I filed a claim for uterovaginal prolapse and was awarded SC for it

 

 

 

Edited March 25, 2018 by piscesbaby
format

[Berta]

I am not saying there is no CUE potential-there could be.

But CUEs are found either in the wording of a claim or ,most often, in the Rating sheet.

There are MANY BVA decisions on DC code 5237 which used to be 5295.

I guess I am stuck on this VA statement.

"The VA instructed me to file new claims specifically asking for earlier effective dates for the two conditions."

But maybe they meant to  "re-open the claims"............and you would need to provide new and material evidence that would warrant a better EED.

You made a good point:

"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 have no good idea why ...................Your profile says you are 100% SC now.....

Have you also applied for SSDI?