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BryanP

Is this a CUE

Question

Hello, and thanks in advance for replies.

In 2012, I submitted a claim for Allergic Rhinitis and Sinusitis.  (I had multiple surgeries...crusting...discharge...polyps, blockages...got it all). 

The result was SC at 30% for rhinitis, (which is 30% with polyps, or 10% with blockage or 0% with no symptoms), and no mention of sinusitis at all, which has a maximum of 50%, and that is commensurate with my problems.

I filed for reconsideration, and my ENT provided a thorough, easy to understand explanation in support of all the other records on how they are in fact 2 separate conditions.

I was successful, and granted SC for Sinusitis at 50%.  I was also granted SC for rhinitis, but at 0%.

I was now well past a year, retired for over a decade, tired from all the Nexus record collection etc....and quite frankly....kind of wore out from the process and frustrated with the situation, and tired of dealing with it. 

Fast forward a few years....with a couple more surgeries under my belt, and a friend tells me I could file for an increase....so I go to Ebenefits and look at my record.  To my amazement, It says I am 50% for "Sinusitis WITH MULTIPLE POLYPS" !!!!

Polyps aren't even in the rating criteria for sinusitis !!  They should have been with the Rhinitis the whole time....giving me the 30 %.

Would this be a CUE?

Thanks

 

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So when you looked on ebenefits, did you have the 50% rating for the sinusitis and 30% still for Rhinitis?  if they changed a rating on you before you filed for the increase, it sounds like they did a CUE on themselves and corrected the error or they CUE'ed themselves and combined the 2 ratings together.  The names make it sound like they are in the same rating category and if that is the case, you wouldn't be allowed to have 2 ratings of the same category, the VA would combine and give the higher of the 2.

 

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I haven't looked at ebenefits in a few years.  So after the conversation with my friend, I went to the site just to look at the rating criteria (SEE BELOW) and start doing some research. 

I am currently rated at 50% for Sinusitis, and 0% for Rhinitis.  I have had a few more surgeries since these claims were SC'd.

The exact verbiage on ebenefits reads:

chronic pansinusitis (chronic rhinosinusitis with hyperplastic nasal polyposis), with multiple polyps......50%...Service connected
allergic rhinitis.....................................................................................................................................................0%....Service connected

The rating criteria:

6522    Allergic or vasomotor rhinitis:

 

                  With polyps     ......................................................................................................... 30
                  Without polyps, but with greater than 50-percent obstruction of nasal
                        passage on both sides or complete obstruction on one side............................... 10 




General Rating Formula for Sinusitis (DC’s 6510 through 6514):

                        Following radical surgery with chronic osteomyelitis, or; near
                              constant sinusitis characterized by headaches, pain and
                              tenderness of affected sinus, and purulent discharge or
                              crusting after repeated surgeries................................................................... 50 

                        Three or more incapacitating episodes per year of sinusitis requiring
                             prolonged (lasting four to six weeks) antibiotic treatment, or;
                              more than six non-incapacitating episodes per year of sinusitis
                             characterized by headaches, pain, and purulent discharge or
                              crusting......................................................................................................... 30 

                        One or two incapacitating episodes per year of sinusitis requiring
                              prolonged (lasting four to six weeks) antibiotic treatment, or;
                              three to six non-incapacitating episodes per year of sinusitis
                             characterized by headaches, pain, and purulent discharge or
                              crusting ........................................................................................................ 10

                  Detected by X-ray only............................................................................................. 0

 

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Based upon your post, it sounds like the rating is higher than you expect, so you certainly would not want to yell "cue" for giving you a higher rating than expected.  Remember, pyramiding prevents you from being compensated for any symptoms twice, so you cant get it for both rhinitis and sinisitus.  

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Actually, it was not higher than expected.  Although it is a common perception that sinusitis and rhinitis are the same thing, they are not.  They have been rated by the VA on a separate basis for years.   That is why I originally filed for them as separate issues, and after the VA combined them, I asked to have them bifurcated, and the VA agreed and then rated me at 50% and 0%.  Polyps are associated with the more severe cases of Rhinitis, that is often triggered by environmental or other factors.  Polyps are not necessarily with sinusitis, which is actually a chronic infection....but polyps can CAUSE sinusitis, even though they didn't in my case.   

I wish this was kind of a what came first, the chicken or the egg issue....but it is not.  I guess my point is... if they recognize that you have Sinusitis, and additionally that you have Rhinitis, and they recognize that you have polyps...and they moved the polyps from the rhinitis to the sinusitis.... even though it is not part of the sinusitis evaluation (it is not even mentioned in the verbiage), I would think that would be a CUE. 

I admit that I am not well versed in dealings with the VA...maybe there is another path I should take?

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Cue is the last resort, not the first.  First, is to file a nod and dispute the VARO decision.  Cue is a much higher standard of review for you to jump over, so unless you are a legal beagle and want the challenge, most people simply file a nod rather than file a motion to revisit decision based on clear unmistakable error.  

However, Berta has had good luck "asking VA to cue themselves", but she is the first one to point out that this is NOT a nod, and you should still file a nod within a year unless your asking va to cue themselves is resolved to your satisfaction first.  

Generally, Cue is a method to obtain an earlier effective date and rarely works for disputes about a disability percentage unless you have all the symptoms of the criteria.  

This said, an erroneous DC code can be cue, but the burden is on you to show its "outcome determinative".  In other words if you have 50 percent for rhinitis, and you think it should be 50 percent for sinisitus, this wont affect your outcome so it isnt cue.  

Now, if you are seeking both rhinitis and sinitus, did you apply for both?  Was one denied?  If so, you probably should have appealed that within a year.  The symptoms attributable to rhinitis may be similar to those associated with sinitus, or close enough the differences could be debatable.  This would be a medical determination, made by your doctor, and you dont cue a docs opinion.  If you dispute a docs opinion, then there are ways to do this, such as an IMO/IME, or a challenge to the doctors c and p credentials, if applicable.  If there are errors in your medical records, then you can seek to amend those, but that isnt cue.  If va decision makers relied upon the opinion of a doctor, even if that doc was wrong, that isnt cue.  You have to right that opinion with an IMO/IME.  Your lay evidence wont repair a faulty doctors opinion.  You have to have another doctor rufute that opinion.  

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