Should I file a CUE or will it equate to a net zero pay?

[Gny Skinner]

I retired with 20yrs from the Marines. My question up front, should I file a CUE for my initial 2000 decision or would I just be awarded a higher VA pay offset by a reduction in my military retirement pay with a net zero gain? Here is the background

 

10/99 retired and filed claim for Headaches, Degenerative changes to T5-T7, right knee condition, left knee condition, low back condition, left foot condition, chest muscle pain, lung condition, myopia and astigmatism and pinguicula of the eyes.

 

5/22/00 Rating Decision headaches 10%, Degenerative changes to T5-T7 SC with 0% and NSC for everything else.

7/25/00 SMRs were taken in and reviewed, were not available before.

7/31/2000 Rating Decision We reviewed your SMRs and no changes warranted. States that records show being seen for low back pain, left foot condition and chest muscle pain however they did not find pain during the C&P therefore denied SC. Other issues not shown in MSRs so denied SC

11/13/01 Deferred Rating Decision (in lieu of VA Form 21-6789) VCAA 2000 Rehabilitation Case End products: 020 and 684. DOC: Pending. Don't know why the “9” indicator was previously used-VID screen does not show Gulf War service.

12/11/01 Letter.. Due to change in the law, we are reconsidering SC for bilateral knee condition, low back condition, left foot condition, chest muscle pain a lung condition and vision problems

4/15/2002 Rating Decision – everything exactly the same, no changes.

 

I never had a VSO or help/advise of any kind. I never filed any NODS, appeals, anything. I just thought each time they sent me something that they have all my records and it is all right there, there is nothing new so no need for me to send them anything.

 

Nothing has happened for 16 years

 

Fast forward

4/3/18 filed claim for reevaluate headaches and degenerative arthritis of spine, new claim for tinnitus, kidney stones, vertigo, hearing loss, GERD and mood disorder (Not PTSD).

7/9/18 Rating Decision The records reflect that you are a veteran of the Gulf War Era and Peacetime.

headaches increased to 50%,

degenerative spine increased to 20%,

tinnitus 10%,

Kidney stones SC with 0% (a higher evaluation of 10% is not warranted unless the evidence shows: only an occasional attack of colic, not infected and not requiring catheter drainage) Dr. left this particular question unanswered,

vertigo denied SC,

Hearing loss denied SC (loss not significant enough),

GERD denied SC, (no C&P ) sent letter that had in service but used OTC for treatment

Mood disorder denied SC, STR show no complaint, treatment or diagnosis. Evidence shows no event, disease or injury. VA contractor exam shows you currently have mood disorder, unspecified, and provided a positive opinion without giving a rational supported by an in service event. Although we received the lay statement from your spouse and by yourself and the examiner provided a positive opinion, sc is denied because there were no in service event found in your STR to show a link between your current mood disorder, unspecified and your military service.

12/12/18 submitted a NOD for Kidney stone, GERD and mood disorder.

 

So, in 2001 they wrongly had me classified as NOT a Gulf War Era veteran. I did serve in theater in the Gulf War and my service record clearly shows that, and did at that time. I never noticed this error in the 2001 decision until just now. This does show a Clear and Unmistakeable Error that can easily be proven.

 

I noticed this because I am preparing to file a claim under 3.317 undiagnosed illness. I believe that if they had 1)properly assisted me in gathering evidence 2) properly classified me as a Gulf War Era veteran and 3) evaluated my initial claim under 3.317 I would have been granted a much higher rating. However, I don't know that I would have reached the magic 50% threshold so as to not reduce my retirement pay.

 

I believe I should have been evaluated based on 4.59 Painful Motion and granted at least the lowest compensable rating for each joint. Would that have been 10% for each knee and each shoulder, 10% for lower back pain and 10% for left foot condition?

 

I believe I should have been evaluated based on code 5321 for chest pain not caused by any other condition and rated based on the slight to sever scale, again, awarding at least the lowest compensable rating of 10%. And possible 10% for lung condition, breathing issues that to this date have never been diagnosed other than they exist.

 

If I file a CUE and they agree but only award 40% or less but still greater than the 10% I was paid over the past 18 or so years, will I then have to repay the portion of my retirement check that they end up paying me in VA back pay?

 

So thankful for the advise of this experienced group.

Gunny

[Berta]

If you were eligible for either CRSC or CRDP. and if they did make a CUE in your past decisions- they might owe you some cash regarding the CRDP/CRSC potential....as well as some VA retro.

 

However I suggest to read over all of the CUE info here- in the CUE forum.

I wrote a CUE for a member today, in the FTCA forum.

I had enough info from his posts to do that- your situation is far  more complex than his.

"I never filed any NODS, appeals, anything. I just thought each time they sent me something that they have all my records and it is all right there, there is nothing new so no need for me to send them anything."

Whether they had all of your records or not, obviously that theory above  did not work for you.

 

"12/11/01 Letter.. Due to change in the law, we are reconsidering SC for bilateral knee condition, low back condition, left foot condition, chest muscle pain a lung condition and vision problems"

what law did they refer to-the 2000 VCAA?   The VCAA meant that VA had to inform the claimant of what evidence they needed for the claim. A response to the letter was required.

4/15/2002 Rating Decision – everything exactly the same, 

 

"7/9/18 Rating Decision The records reflect that you are a veteran of the Gulf War Era and Peacetime.

headaches increased to 50%,

degenerative spine increased to 20%,

tinnitus 10%,"

I assume that prompted you to get CRDP from the date you filed the claim. 

What I dont see is how the proper GW Era status now would be  benefiting you-

It is great that they corrected that error. But I am missing something- 

I assume that you were  incounty Gulf War but I sure might be wrong-and I dont see anything to trigger the Gulf War presumptives here.

STILL-You did well Finally!

And might have a CUE basis- Ok- I see that it was the VCAA-----

You need to pull out those decisions and be able to identify their legal error. 

Then again can you scan and attach here the "12/11/01 Letter."

And the 4/15/2002 Rating Decision- cover your C file # and name prior to scanning it.

They might have committed an error with the VCAA letter- a big Might-and that caused an erroneous decision.

I received an erroneous VCAA letter years ago but I knew what it should have asked for so my evidence awarded that claim. Then again if you did get one ( it would be noted in your C file) and you did not respond, there might be no basis for a CUE against them.

If they overlooked anything probative for any of the denied issues , thsat would definitely be basis for CUE.

 

"GERD denied SC, (no C&P ) sent letter that had in service but used OTC for treatment."

I am surprised there was no C & P exam- did the VA ever prescribed NSAIDs to you for the migraines?Or for the spine issues?

"Mood disorder denied SC, STR show no complaint, treatment or diagnosis. Evidence shows no event, disease or injury. VA contractor exam shows you currently have mood disorder, unspecified, and provided a positive opinion without giving a rational supported by an in service event. Although we received the lay statement from your spouse and by yourself and the examiner provided a positive opinion, sc is denied because there were no in service event found in your STR to show a link between your current mood disorder, unspecified and your military service."

Did you have any incountry event that would raise to the level of a stressor? That claim is needing a nexus ( link) to a provable event in service that could cause a mood disorder.

Was this claim for Mood disorder or for PTSD?

By all means appeal the denied issues and go over the CUE info here carefully.

 

 

 

[Gny Skinner]

1 hour ago, Berta said:

I

My prior 10% was not CRSC. I don't think I qualify for that because I was in theater but never in actual combat.

"I never filed any NODS, appeals, anything. I just thought each time they sent me something that they have all my records and it is all right there, there is nothing new so no need for me to send them anything."

Whether they had all of your records or not, obviously that theory above  did not work for you.

I totally agree. I really had no idea what I was doing back then.

 

"12/11/01 Letter.. Due to change in the law, we are reconsidering SC for bilateral knee condition, low back condition, left foot condition, chest muscle pain a lung condition and vision problems"

what law did they refer to-the 2000 VCAA?   The VCAA meant that VA had to inform the claimant of what evidence they needed for the claim. A response to the letter was required.

 Yes, it was the VCAA 2000 Rehabilitation Case. That is when they told me if I had more evidence I needed to send it in and I assumed they had everything.

 

"7/9/18 Rating Decision The records reflect that you are a veteran of the Gulf War Era and Peacetime.

headaches increased to 50%,

degenerative spine increased to 20%,

tinnitus 10%,"

I assume that prompted you to get CRDP from the date you filed the claim.  YES

What I dont see is how the proper GW Era status now would be  benefiting you- I assume that since it is corrected that I now qualify under the undiagnosed illness portion. They didn't use that prior so since I didn't have an actual diagnosis, just “joint pain” and “muscle pain” didn't prove anything. But those are listed in 3.317 as justifying compensation for Gulf War vets.

It is great that they corrected that error. But I am missing something- 

I assume that you were  incounty Gulf War but I sure might be wrong-and I dont see anything to trigger the Gulf War presumptives here.

STILL-You did well Finally!

And might have a CUE basis- Ok- I see that it was the VCAA-----

You need to pull out those decisions and be able to identify their legal error.  Not rating me as a gulf war vet and not using the assumption of painful motion with no diagnosis of illness. They never considered 3.317 as an option in their decision.

Then again can you scan and attach here the "12/11/01 Letter." scanning to send them now.

And the 4/15/2002 Rating Decision- cover your C file # and name prior to scanning it.

They might have committed an error with the VCAA letter- a big Might-and that caused an erroneous decision.

I received an erroneous VCAA letter years ago but I knew what it should have asked for so my evidence awarded that claim. Then again if you did get one ( it would be noted in your C file) and you did not respond, there might be no basis for a CUE against them. I definitely did not respond.

If they overlooked anything probative for any of the denied issues , thsat would definitely be basis for CUE. This is where I believe they should have been looking for a link between “Gulf War Syndrome” and all the undiagnosed illnesses such as joint pain, muscle pain and many more that I have now identified.

 

"GERD denied SC, (no C&P ) sent letter that had in service but used OTC for treatment."

I am surprised there was no C & P exam- did the VA ever prescribed NSAIDs to you for the migraines?Or for the spine issues? I was given Motrin all the time while on active duty, we referred to it as M&Ms. I had a prescription from the VA for hydrocodone.

"Mood disorder denied SC, STR show no complaint, treatment or diagnosis. Evidence shows no event, disease or injury. VA contractor exam shows you currently have mood disorder, unspecified, and provided a positive opinion without giving a rational supported by an in service event. Although we received the lay statement from your spouse and by yourself and the examiner provided a positive opinion, sc is denied because there were no in service event found in your STR to show a link between your current mood disorder, unspecified and your military service."

Did you have any incountry event that would raise to the level of a stressor? That claim is needing a nexus ( link) to a provable event in service that could cause a mood disorder. Yes, and it was discussed during the C&P but the examiner did not mention it in his rational. It was also mentioned in my letter which they say they had. Also, I don't know for sure if a stresser is required since the claim is not for PTSD, it is for mood disorder other.

Was this claim for Mood disorder or for PTSD? Mood disorder other

By all means appeal the denied issues and go over the CUE info here carefully. Thank you, I am searching and reading everything I can find on here. I really appreciate all thei nformation.

 

 

 

[Gny Skinner]

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[doc25]

11 hours ago, Gny Skinner said:

I retired with 20yrs from the Marines. My question up front, should I file a CUE for my initial 2000 decision or would I just be awarded a higher VA pay offset by a reduction in my military retirement pay with a net zero gain? Here is the background

 

10/99 retired and filed claim for Headaches, Degenerative changes to T5-T7, right knee condition, left knee condition, low back condition, left foot condition, chest muscle pain, lung condition, myopia and astigmatism and pinguicula of the eyes.

 

5/22/00 Rating Decision headaches 10%, Degenerative changes to T5-T7 SC with 0% and NSC for everything else.

7/25/00 SMRs were taken in and reviewed, were not available before.

7/31/2000 Rating Decision We reviewed your SMRs and no changes warranted. States that records show being seen for low back pain, left foot condition and chest muscle pain however they did not find pain during the C&P therefore denied SC. Other issues not shown in MSRs so denied SC

11/13/01 Deferred Rating Decision (in lieu of VA Form 21-6789) VCAA 2000 Rehabilitation Case End products: 020 and 684. DOC: Pending. Don't know why the “9” indicator was previously used-VID screen does not show Gulf War service.

12/11/01 Letter.. Due to change in the law, we are reconsidering SC for bilateral knee condition, low back condition, left foot condition, chest muscle pain a lung condition and vision problems

4/15/2002 Rating Decision – everything exactly the same, no changes.

 

I never had a VSO or help/advise of any kind. I never filed any NODS, appeals, anything. I just thought each time they sent me something that they have all my records and it is all right there, there is nothing new so no need for me to send them anything.

 

Nothing has happened for 16 years

 

Fast forward

4/3/18 filed claim for reevaluate headaches and degenerative arthritis of spine, new claim for tinnitus, kidney stones, vertigo, hearing loss, GERD and mood disorder (Not PTSD).

7/9/18 Rating Decision The records reflect that you are a veteran of the Gulf War Era and Peacetime.

headaches increased to 50%,

degenerative spine increased to 20%,

tinnitus 10%,

Kidney stones SC with 0% (a higher evaluation of 10% is not warranted unless the evidence shows: only an occasional attack of colic, not infected and not requiring catheter drainage) Dr. left this particular question unanswered,

vertigo denied SC,

Hearing loss denied SC (loss not significant enough),

GERD denied SC, (no C&P ) sent letter that had in service but used OTC for treatment

Mood disorder denied SC, STR show no complaint, treatment or diagnosis. Evidence shows no event, disease or injury. VA contractor exam shows you currently have mood disorder, unspecified, and provided a positive opinion without giving a rational supported by an in service event. Although we received the lay statement from your spouse and by yourself and the examiner provided a positive opinion, sc is denied because there were no in service event found in your STR to show a link between your current mood disorder, unspecified and your military service.

12/12/18 submitted a NOD for Kidney stone, GERD and mood disorder.

 

So, in 2001 they wrongly had me classified as NOT a Gulf War Era veteran. I did serve in theater in the Gulf War and my service record clearly shows that, and did at that time. I never noticed this error in the 2001 decision until just now. This does show a Clear and Unmistakeable Error that can easily be proven.

 

I noticed this because I am preparing to file a claim under 3.317 undiagnosed illness. I believe that if they had 1)properly assisted me in gathering evidence 2) properly classified me as a Gulf War Era veteran and 3) evaluated my initial claim under 3.317 I would have been granted a much higher rating. However, I don't know that I would have reached the magic 50% threshold so as to not reduce my retirement pay.

 

I believe I should have been evaluated based on 4.59 Painful Motion and granted at least the lowest compensable rating for each joint. Would that have been 10% for each knee and each shoulder, 10% for lower back pain and 10% for left foot condition?

 

I believe I should have been evaluated based on code 5321 for chest pain not caused by any other condition and rated based on the slight to sever scale, again, awarding at least the lowest compensable rating of 10%. And possible 10% for lung condition, breathing issues that to this date have never been diagnosed other than they exist.

 

If I file a CUE and they agree but only award 40% or less but still greater than the 10% I was paid over the past 18 or so years, will I then have to repay the portion of my retirement check that they end up paying me in VA back pay?

 

So thankful for the advise of this experienced group.

Gunny

Gunny,

On the issue of mood disorder. "Direct-service connection"; unfortunately,  won't be granted if there is no in-service diagnosis/event/injury.

There is  another way to service-connect it. Your Headaches are high enough and debilitating enough now , that it will aggravate or make your mood disorder worse. "Secondary-service aggravation" is probably the best route to consider. 

Secondary Service Aggravation

Secondary service aggravation is a little different from Secondary Service Connection in that it is not something that was directly caused by the service-connected illness or injury but was aggravated by it enough that it is now an issue of its own. 

To secondary service aggravation a condition a veteran's claim must meet these requirements:

#1. Veteran must have a service connected disability. Which you do with your headaches.

#2. Veteran must have a current diagnosis. Which you do with mood disorder

#3. A Dr.'s nexus of opinion must "at least as likely as not" (equal to or greater than 50% probability) link #1 and #2. A rationale must be provided explaining why. Which you'll need to obtain by a private Dr. or VA Dr.; a C&P examiner can also provide it during a C&P exam.

The problem with your initial claim isn't anything you did wrong. The VA contracter made the mistake of merely speculating that your mood disorder was caused by military service. Without finding an inservice diagnosis or event in you SMR and giving a rationale of why your mood disorder was caused by military service. 

 

Since you did serve in theatre during the Gulf War.

You have described your  symptoms on here  that are consistent with Gulf War Syndrome. 

Gulf War Syndrome symptoms can include:

– Fatigue
– Skin symptoms
– Headaches
– Muscle pain
– Joint pain
– Neurological symptoms
– Mental symptoms
– Respiratory symptoms
– Trouble sleeping 
– Cardiovascular symptoms
– Abnormal weight loss
– Menstrual disorders
– Gastrointestinal symptoms

This website is a good resource. https://www.militarydisabilitymadeeasy.com/gulfwarsyndrome.html 

I hope this gives you some good info moving forward with your claim/appeals. Rah!

[Berta]

Great advice-thanks Doc 25!!!

Now I see what this vet means about the GW incountry status-he and you are Right!

I stand corrected!

I will go over the pdfs carefully-hope others here , with Gulf War illnesses ,chime in as well...

I consider myself an expert on AO but the Gulf War presumptives still confuse me.

[broncovet]

You have been given great advice by Doc and Berta.  The only thing I have to add is that often there IS a CUE, but it often is not the CUE error the Veteran "thinks" it is.  Sometimes Veterans confuse CUE with "fairness", and Cue wont often right an "unfair" decision.  For example, if there is a disagreement about the disability percentage, this is almost never CUE, because the decision maker need only demonstrate that there was a "plausable" reason for his decision.  He need not prove his decision was correct, or even accurate, but only that the error did not rise to the CUE standard of review.  

A Cue error has to be "undebateable", has to be based on the laws at the time, and, there is no "benefit of the doubt goes to the Veteran" with Cue.  THe claimant needs to specify a specific legal error that was committed, and I did not see you were alleging a specific legal error.  For example, are you alleging violation of 3.103, 3.156 b or 4.16?   

There may well be CUE error, but the Veteran needs to allege the "right" cue error when filing for a revision based on Clear error.  The VA wont say,  "Oh, no there was no error that the Veteran alleged, but there was an error or ________, so lets give it to him.  

This is why I recommend you take your cfile to an experienced Vets attorney, and let him see if there is a valid cue allegation worth persuing.  

The attorney will give you probably an hour of free advice, and may or may not offer his services.  YOu can then decide whether or not to take the attorney's advice, seek another attorney, hire this attorney, or go it alone.  Letting an attorney look over your file is "dating", and neither of you are committed until you sign (and the attorney offers!) a fee agreement.  

You dont have to make a long term promise to take a gal out to dinner, and you dont have to consent to hire that attorney by having him look over your file.  In a similar way, the attorney does not make an agreement to represent you, he simply agrees to "look it over" to decide if he thinks you have a winnable case.  

You may well "part ways" after he reviews your file, BUT, you can still benefit from his professional advice.  I have learned a lot talking to attorneys, some of which I have hired, and some not.  If you are not seriously considering an attorney, then dont go through the motions...just like you may not want to waste your time dating a gal you have no intention of a more serious future with.  Its much more than just about looks, with either your attorney or someone you are considering dating.  

When I talk to an attorney, I ask lots of questions, trying to figure out why he or she gives the advice he gave.  Sometimes, the answer is that the attorney is simply overbooked and not interested in your case as he does not consider it lucrative enough.  In other words, if the attorney thinks the retro potential is less than 10,000, he may not be interested, while if the retro potential is 100,000 or more, he may get interested!!  The law firm is a business, and it shouldnt be a suprise the attorney wants to make sure he is well paid for the hours he puts into your case.