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Red4

Do I have a CUE am I wasting my time?

Question

Not sure if I am on the right track but my draft letter below should spell out most  of the details. Interested in the thoughts of those with experience.

 

Thanks

 

PS: I love this website but is time consuming.

 

re:        Veteran: XXXXXXX X. XXXXXXXX

C-file: XXX XX XXXX

 

CLAIM OF CLEAR AND UNMISTAKABLE ERROR IAW 38 CFR 3.105(a)

 

Dear Sir/Madam:

 

This letter is regarding a decision on my claim for an increase in service compensation dated November 22, 2004 (Exhibit 1). A copy of the letter informing me of the decision dated May 5, 2005 along with the associated Rating Decision, dated April 29, 2005, is attached (Exhibit 2). The Rating Decision increased the rating for my service connected Degenerative Disc Disease from 0% disabling to 20% disabling effective November 29, 2004. This decision resulted in a new overall or combined rating of 30% as detailed in the May 5, 2005 letter.

I am requesting the Rating Decision, dated April 29, 2005 (Exhibit 1) be amended to conform to the “true” state of the facts and the law extant at the time of the adjudication.

Facts:

 

  •          The Rating Decision dated April 29, 2005 lists evidence supporting the decision which includes in part the “VA examination (Germany) dated February 23, 2005” (Exhibit 3).

 

  •    The VA Examination titled “The Orthopedic Protocol Examination Report on XXXXX XXXXXXXXXXX C/SSN: XXX XX XXXX” dated February 23, 2005, contains an orthopedic diagnosis which includes “chronic radiculopathy L4 on the right”.  In the same report, the examiner opined in part “the present status (herniation of 3 lumbar discs with radiculopathy on the right side) is consistent with worsening of the established sc degenerative disc disease of the lumbar spine.”

 

  •          Evidence of record extant at the time of the rating decision is absent evidence that rebuts the results of the VA Examination.

 

  •          Evidence of record extant at the time of the rating decision is silent any inadequacies regarding the diagnosis detailed in the examination report; the findings supporting the diagnosis detailed in the examination report; or the sufficiency of detail in the examination report for evaluation purposes.
  •  The Rating Decision dated April 29, 2005 is silent of the subject of the diagnosed radiculopathy nor does it make any mention of the neurological symptomatology detailed in the examination report.

 

  • Evidence of record extant at the time of the rating decision include records of treatment from the Louisville, KY VAMC dated 04 Jun 2003 to include treatment for “Chronic low back pain” and prescriptions for treatment pain and muscle spasms. Diagnostic radiology reports from 4 Jun 2003 document mild scoliosis (levoscoliosis) and degenerative spur formation at the L3 and 4 level.

Findings of clear and unmistakable error (CUE):

 

  •         The adjudication of my claim for an increase in service compensation dated November 22, 2004 incorrectly applied or failed to apply the provisions of 38 CFR Ch. I (7–1–04 Edition) § 4.71a which states under “General Rating Formula for Diseases and Injuries of the Spine” in part “Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.”

 

  •         The adjudication of my claim for an increase in service compensation dated November 22, 2004 incorrectly applied or failed to apply the provisions of 38 CFR Ch. I (7–1–04 Edition) § 3.157 under “(a) General” which states in part “Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement.”

I make this request as a clear and unmistakable error (CUE) exists in that either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied. The errors are of the sort which, had they not been made, would have manifestly changed the outcome at the time they were made.

A reasonable mind, having reviewed all the facts known at the time, would have concluded the following:

 

  •          The effective date of any increase in pension or compensation benefits resulting from the Rating Decision dated April 29, 2005 should be June 4, 2003, date of the informal claim, and not November 29, 2004 as detailed in the Rating Decision.

 

  •          Neurologic abnormalities related to the service connected degenerative disc disease were present at the time of the VA examination completed on February 23, 2005; that the competent medical evidence of record supports that conclusion and that the neurologic abnormalities should be rated separately under the appropriate diagnostic codes.

 

  •         The terms “Mild”, “Moderate”, Moderately Severe”, and “Severe” are not defined in the Rating Schedule.

 

  • The competent medical evidence of record finds that “There is noted a severe restriction of the lumbar motion and function” and that “All thoracolumbar motions were conducted slowly and carefully”. The neurological symptomatology in my lower extremities is productive of severe limitation of motion and function, continuous pain on use and recurrent severe flare-ups after trivial motions which more closely approximates moderately severe incomplete paralysis of the sciatic nerve.

 

  •          The competent medical evidence of record finds that “There is noted a severe restriction of the lumbar motion and function” and that “All thoracolumbar motions were conducted slowly and carefully”. The neurological symptomatology in my lower extremities is productive of severe limitation of motion and function, continuous pain on use and recurrent severe flare-ups after trivial motions which more closely approximates severe incomplete paralysis of the anterior crural nerve (femoral).

 

  •        Records of treatment for chronic low back pain at the Louisville, KY VAMC on June 4, 2003 documents the receipt of an informal claim for increase in the back condition establishing the proper effective date for increase as June 4, 2003, the date of receipt of the informal claim.

 

I respectfully request your prompt consideration of this request and that any decisions be expedited to ensure efficient processing and minimize incorrect payments.

Thank you for your service to the Veterans of this nation.

 

Regards,

 

XXXXXX X XXXXXXXXX

Veteran

 

Edited by Red4
Formating

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Have you clearly identified in the attachments or stated that the diagnostic codes they gave you were wrong?

If they were-

Have you double checked all of those Diagnostic codes and  percentages that were in place at time of the decisio you are CUeing?

Can you shorten this in any way? They cant handle much at a time.

I know maybe you cannot shorten it- and you certainly did a lot of work on this.

I suggest you add that they violated 38 CFR 4.6-  that one has always worked for me and it covers a lot.

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

(Actually I would put that regulation  right after Dear Sir/Madame, stating you believe VA violated 38 CFR 4.6)in the first sentence of the CUE )

I am not familar with the disabilities you have but others will chime in.

Some of my CUEs are in our CUE forum with lots more info on this regulation.

The worse CUE of all is the one that is never filed.You are not wasting your time.

Also if the older decision has an alpha numeric code near the date- the alpha is the initials of who made the decision you are filing CUE on.

I stated Attention To and used these initials on my last 2-3 CUE claims.

 

 

 

 

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Berta,

Thanks for the comments. Yes it is a bit long but I was concerned with missing some point that may prove to be critical. I had thought that it better to have too much rather than missing something that could result in a denial.

I should note that this is a bit of Monday morning quarterbacking as my wife mailed the envelope into the RO yesterday. I am just wandering if I did the right thing. 

I would be happy to upload the decision letter and exam results but I didn't see how to upload documents. Any pointers or is that  simply not permitted? I did see the video on uploading but I did not see the same buttons.

I guess if I can get the documents upload I could get some better feedback on the merits of my claim.

 

 

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If a CUE requires any thought, judgement or debate then it is not a CUE.  I had what I and my lawyer considered a black and white CUE and we still lost at Court of Vet Appeals after 7 years.   I got an education in just how slick the VA can be and my lawyer does not do CUE's anymore after losing mine.   IMO a CUE must be in the same realm as a clerical error.  It has to be so obvious from a reading of the regulations that to miss it is just malpractice.  My trouble was that a period of 30 years passed between my CUE claim and the original decision allowing for the laws and regulations to be changed many times. 

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If this is a recent decision (within a year), then I suggest filing a nod.  Cue is for finally adjuticated deisions over a year.  However, Berta has had good luck "asking VA to cue themselves", so, this may work, but it just doesnt make sense to try to "raise the standard of review" to cue, when you are still in the appeal period.  

Its possible these errors DO rise to the cue standard of review, but I say why risk it?  Keep the benefit of the doubt and just appeal.  If you do file a cue, file a nod within a year anyway, because you may just find yourslelf in a large group of people who cant get a cue awarded, but who COULD have won an appeal, because a regular appeal has a lower standard of review, including the benefit of the doubt.  

Given that this decision is over a year old, a possible alternative to cue is to file to reopen due to n and m evidence, especially if its new service records OR if you DID submit "new evidence" within the one year apppeal period.  See 38 cfr 3.156 b and 3.156 c

Edited by broncovet

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Bronco,

 

I appreciate your thoughts. This CUE is related to a claim which was decided back in 2005. I am attaching a copy of my exam results and rating decision. Hopefully these two documents will help in understanding why I believe a CUE occurred in this case. 

I only wish I knew then what I have recently learned via this site.

Red 

 

   

 

 

 

 

Exam Results Redacted.pdf

Rating Decision Redacted.pdf

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