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

[Gny Skinner]

22 minutes ago, broncovet said:

 

Broncovet, doc25, and Berta. Thank you for chiming in on this. I will definitely read all the websites referenced.

I actually did go to an attorney and that's why the cue issue came up. I was searching for an attorney with experience in filing a Gulf War Illness claim and he actually spotted the possible cue issue. I put a halt to it until I researched it more because he charges 20% of back pay. If this went through it could be a big paycheck which is fine but only if it does not affect what I would have to pay back to the government for being overpaid.

That is really my question here. I was paid at 10% for the last 17 years. That reduced my retirement pay by 10%. If this went through and say I would now be paid at for instance 40% for the last 17 years would that also say that I was overpaid by DOD by the incremental 30%? I wouldn't have been at the magic 50% threshold to make the VA pay incremental. I would not want to get a giant check from the VA and immediately have to pay it all back. To me that's just not worth the hassle.

 

I'm still unsure if I need a trigger for mood disorder. I did file the nod for that and the trigger was definitely discussed during my C&P and in my records. Not my military service records but the records that I submitted in addition to that that the doctor reviewed. The doctor just did not mention it in his rationale so the nod that we filed brought it up again and said basically look at what you have, it's there.

I have been reading everything I can on filing for Gulf War Illness because I understand it is difficult to prove. The attorney thought that because they did not identify me as a Gulf War veteran on my 1999 claim but they finally admitted to it on my 2018 claim that perhaps that was cause for a cue going back to 1999 and claiming Gulf War Illness for the identified issues at that time.

[Berta]

"The attorney thought that because they did not identify me as a Gulf War veteran on my 1999 claim but they finally admitted to it on my 2018 claim that perhaps that was cause for a cue going back to 1999 and claiming Gulf War Illness for the identified issues at that time."

Right!  What specific legal error has the attorney discovered?

Sometime it is far better to pay 20% to a lawyer for something, rather than not pay for a lawyer

and get nothing.

Your lawyer seems to definitely be on the ball- does he understand the CRDP ramifications?

"I'm still unsure if I need a trigger for mood disorder. I did file the nod for that and the trigger was definitely discussed during my C&P and in my records. Not my military service records but the records that I submitted in addition to that that the doctor reviewed. The doctor just did not mention it in his rationale so the nod that we filed brought it up again and said basically look at what you have, it's there."

 I disagree-'Mood disorder' is not even in the VA Ratings Schdule: unless I am missing it.

§4.130   Schedule of ratings—Mental disorders.

"The nomenclature employed in this portion of the rating schedule is based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) (see §4.125 for availability information). Rating agencies must be thoroughly familiar with this manual to properly implement the directives in §4.125 through §4.129 and to apply the general rating formula for mental disorders in §4.130. The schedule for rating for mental disorders is set forth as follows:

9201   Schizophrenia

9202   [Removed]

9203   [Removed]

9204   [Removed]

9205   [Removed]

9208   Delusional disorder

9210   Other specified and unspecified schizophrenia spectrum and other psychotic disorders

9211   Schizoaffective disorder

9300   Delirium

9301   Major or mild neurocognitive disorder due to HIV or other infections

9304   Major or mild neurocognitive disorder due to traumatic brain injury

9305   Major or mild vascular neurocognitive disorder

9310   Unspecified neurocognitive disorder

9312   Major or mild neurocognitive disorder due to Alzheimer's disease

9326   Major or mild neurocognitive disorder due to another medical condition or substance/medication-induced major or mild neurocognitive disorder

9327   [Removed]

9400   Generalized anxiety disorder

9403   Specific phobia; social anxiety disorder (social phobia)

9404   Obsessive compulsive disorder

9410   Other specified anxiety disorder

9411   Posttraumatic stress disorder

9412   Panic disorder and/or agoraphobia

9413   Unspecified anxiety disorder

9416   Dissociative amnesia; dissociative identity disorder

9417   Depersonalization/Derealization disorder

9421   Somatic symptom disorder

9422   Other specified somatic symptom and related disorder

9423   Unspecified somatic symptom and related disorder

9424   Conversion disorder (functional neurological symptom disorder)

9425   Illness anxiety disorder

9431   Cyclothymic disorder

9432   Bipolar disorder

9433   Persistent depressive disorder (dysthymia)

9434   Major depressive disorder

9435   Unspecified depressive disorder

9440   Chronic adjustment disorder

https://www.ecfr.gov/cgi-bin/text-idx?SID=06160f8f0090875d79026f1206d2fc26&mc=true&node=se38.1.4_1130&rgn=div8

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But I have seen it service conected thus- anxiety with mood disorder, bi polar with mood disorder, depression with mood disorder -adjustment disorder with mood disorder, etc etc.

I have never seen it sced solely as Mood disorder.

 "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."

Right-this wil need prove of "an inservice event".

What were the qualifications of this contracted examiner- psychologist? psychiatrist?

Have you had any private MH records or diagnoses?

Perhaps you do not want to reveal the "trigger" for this here- but by all means, if you hire a lawyer for the NOD on their denial, make sure the lawyer is aware of the "trigger".

I think your diagnosis might have been incorrect.

That would not raise to a CUE level, but that could be overcome by a real MH doctor (in the form of an IMO/IME) instead of a non VA contractor, because as VA stated:

the contractor diagnosed you "without giving a rational supported by an in service event."

A IMO/IME will cost some Cash-however- to develop the rationale and they might disagree with that diagnosis and give you a ratable MH diagnosis.

In any event- I have been a hard core claimant since I worked at VA in 1983-in the PTSD combat Group- and I assure you, you will need proof of whatever happened to you, that caused any service connectable MH issue.

"and the trigger was definitely discussed during my C&P and in my records. "

As Honorable as your LONG years of service to the US have been, the VA does not want to  believe what veterans say-

they have to prove everything-----the proof might well be in your VA records but they skim over SMRs and VA medical records and possibly  missed something there. And that might be  a CUE under violation of 38 CFR.4.6 but the again a CUE rests on any condition ratable at least at 10%.

That means, if you cant find anything solely for Mood disorder on the above list- you will need a MH diagnosis that also included Mood disorder, to have a valid CUE- but if you comply with exactly what the VA needs....and I think you need a better C & P or a diagnosis from a NON VA MH professional, and that with the "trigger" proof, would garner a SC comp % and there wuld be no need for CUE on that matter.

Maybe you should request a different C & P examiner- (I sure would) and point out to the VA what you stated here-this exam was too speculate-state that too in the request. The examiner might also have no MH  credentials that would support his opinion anyhow.

Not to long ago a male vet here with a leg disability ( PAD, PN, forget what) got a lousy  C & P exam  done by  a  Gynecologist!

I hope they raised hell on that.

I have raised hell lately on a  posthumous C & P exam-I did win the claim but that is not the point.

The main witness, the real claimant, my husband , is dead so they think they can pull anything on me, but I fight back.

I have spent over $4,000 on IMOs for one claim I had, because their C & P exams were ridiculous. Some I rebuted myself without an IMO.

 

 

I

 

 

 

 

 

 

 

 

 

Edited December 14, 2018 by Berta

[Gny Skinner]

I will have to look up the code that actually shows mood disorder but it was definitely on the list that I looked at just last night. And the doctor was a civilian psychiatrist I believe that was hired specifically for the c&p exam. It was all there the trigger it just was not in my service medical record. I know I can get a buddy statement because I have a buddy who is already service-connected for PTSD for this exact same trigger. We were stationed together when it happened. I'm not trying to claim a cue for the mood disorder. I think it will be easy to prove that it did happen and that I was in fact there and I do already have the diagnosis

[Gny Skinner]

 

 

5 hours ago, broncovet said:

 

Broncovet, doc25, and Berta. Thank you for chiming in on this. I will definitely read all the websites referenced.

I actually did go to an attorney and that's why the cue issue came up. I was searching for an attorney with experience in filing a Gulf War Illness claim and he actually spotted the possible cue issue. I put a halt to it until I researched it more because he charges 20% of back pay. If this went through it could be a big paycheck which is fine but only if it does not affect what I would have to pay back to the government for being overpaid.

That is really my question here. I was paid at 10% for the last 17 years. That reduced my retirement pay by 10%. If this went through and say I would now be paid at for instance 40% for the last 17 years would that also say that I was overpaid by DOD by the incremental 30%? I wouldn't have been at the magic 50% threshold to make the VA pay incremental. I would not want to get a giant check from the VA and immediately have to pay it all back. To me that's just not worth the hassle.

 

I'm still unsure if I need a trigger for mood disorder. I did file the nod for that and the trigger was definitely discussed during my C&P and in my records. Not my military service records but the records that I submitted in addition to that that the doctor reviewed. The doctor just did not mention it in his rationale so the nod that we filed brought it up again and said basically look at what you have, it's there.

I have been reading everything I can on filing for Gulf War Illness because I understand it is difficult to prove. The attorney thought that because they did not identify me as a Gulf War veteran on my 1999 claim but they finally admitted to it on my 2018 claim that perhaps that was cause for a cue going back to 1999 and claiming Gulf War Illness for the identified issues at that time.

[Gny Skinner]

Found it, code 9435, current va website says, Mood Disorder other than specified above

[Berta]

Good !  Thank you!I guess our VA SRD link here is outdated,.

I suggest, (if you do retain the lawyer or even if not ) to do this-

Send them a 21 -4138 form ( available here under a search, as "Statement in Support of Claim".)

Tell them of the buddy statement and enclose it- I did an article here searchable on what buddy statements should contain. The buddy should tell them in detail what happened and that he was in your same unit, same time and place and that he is SCed for PTSD due to this event. And give his contact info to them. Getting his signature notarized is also a good idea. Any bank he deals with should do that for free.

Tell the VA that you want them to consider any potential Mental health issue you have,that is due to your service.

The reason for this is, the VA might re characterize this claim for the Mood disorder as PTSD with Mood disorder...

Or you can stick with the Mood disorder claim as it is now.