Is this a CUE

[BryanP]

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

 

[broncovet]

Once again, I learned something from Berta.  Years ago, Jim Strickland had a bit about Cue, and alleged that, once a cue was filed, you could never file it again.  As Berta correctly pointed out, Jim was incorrect in that it depends upon the words BVA uses to deny cue.  If the cue is denied "without prejudice", then that means the Veteran can re word his cue and file it again.  Great work, Berta.  

[Berta]

Gee- I stated that wrong- The BVA will “dismiss” without prejudice some CUE claims, allowing the veteran to refile the CUE in a proper way. I said deny and knew I had to go to the BVA to get the right words BVA uses.

Sorry about that .

The idea that CUE is ‘ a one shot deal” is not true, and was probably made up by some lazy assed vet rep decades  ago and other vet reps ran with it.

This case shows what I mean:

Issues:

1.“Entitlement to an effective date earlier than October 25, 1991, for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE). 

 

2.  Entitlement to an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, to include on the basis of CUE.”

 

 

“The motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD is dismissed without prejudice to refiling.”

 

(The CUE filed on the hearing loss was denied.)

The long decision states that the veteran alleged many errors on the PTSD CUE claim but was not specific as to what legal errors were committed. But can reshape the CUE and file it again per the decision.

“1.  In June 1992, the RO granted service connection for PTSD, effective from October 25, 1991.  The Veteran did not appeal the assignment of the effective date.

2.  The Veteran has failed to adequately set forth the alleged errors of fact or, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error as it pertains to the claim for an effective date earlier than October 25, 1991, for the grant of service connection for PTSD, on the basis of CUE.”

https://www.va.gov/vetapp17/files2/1708211.txt

I didnt get the pop up to post the decision as text.....

This is the important part:

"The pleading requirements for a motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD have not been met; thus, the motion must be dismissed without prejudice to refiling.  38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2016)."

Dismissed but not denied----- The vet had the DAV on their POA- I think the DAV made up the 'one shot deal" crap uears ago- some Big Six vet org did.

The hearing loss CUE in this case was denied, however.

Edited May 18, 2018 by Berta
added more

[BryanP]

Quote

 

a little clarification....

My original rating was for "Chronic Sinusitis to include allergic rhinitis....30%"  I filed for reconsideration(?) and it was bifurcated as requested.

The new decision read ---- assigned 50% for Pan-sinusitis chronic, (with hyperplastic nasal polyposis), with multiple surgeries, DUE TO POLYPS based on:
 -near constant sinusitis characterized by:
           -headaches, pain, crusting, purulent discharge, tenderness after repeated surgeries. (NOTHING ABOUT THE POLYPS)

It then says....The evaluation of allergic rhinitis, currently evaluated at 0% is continued.
  -A noncompensable evaluation for your allergic rhinitis based on
                 -Rhinitis without polyps

Briefly, although people think they are the same,  Allergic Rhinitis is a reaction to an environmental trigger.  Sinusitis is an infection.

(Also, since that rating, I now have chronic osteomyelitis showing on my CT scans.)

So, I have recurrent polyps....they are always there to some extent.  If I file for an increase I loose my original date, AND, the reason would be recurrence of the polyps...would it be new evidence?
If not new evidence because they say I already submitted the polyp problems in the past wouldn't that be a CUE??

Is there some other way to address this ?

Edited May 18, 2018 by BryanP
more info

[Berta]

Please read over the CUE info here in our CUE forum and, if you do feel they made a legal error in the rating, by all means file a CUE claim.

Wouldn't the polyps affect both the rhinitis and the sinus problem?

I just dont know anything about these conditions but it is worth your while to study CUE  info here and  the ratings  and diagnostic codes they gave you to see if they made an error to your detriment.

 

[BryanP]

I am trying to educate myself regarding CUE's and going through those post.

11 minutes ago, Berta said:

Wouldn't the polyps affect both the rhinitis and the sinus problem?

Short answer...yes.  It can get very circular.  In reality, You can have rhinitis with/without polyps, and/or Sinusitis with/without polyps.  And you can have sinusitis with or with out rhinitis.  But, you can get the trifecta....You get the polyps because the nasal lining is agitated.  It can get agitated from rhinitis or sinusitis.  When the polyps grow and cut off the air passages, you get an infection, which is not an allergic reaction....it makes my head spin !!

THE ONLY WAY TO ADDRESS THEM WITH THE VA IS UNDER ALLERGIC RHINITIS 6522......they are not listed under sinusitis.

Thanks for the replies.....I am reading everything.

[pwrslm]

All the secondary conditions caused by Rhinityis and sinus problems are also ratable as SC conditions. Make a full list of symptoms and look to see if they are pyramiding or separate from the cause, IE...headache is not pyramiding if it is caused by the SC condition..if it causes pain and no other symptom, it is rated at the lowest level for headaches.

 

 

 If you have sinus headaches that are severe enough to be eligible for a rating, then they can be rated under the VASRD Code for migraine headaches, since that is the condition that is closest to your condition, and would be expected to cause a similar degree of disability.

Edited May 18, 2018 by pwrslm