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]

On 12/14/2018 at 9:51 AM, Berta said:

 

9435   Unspecified depressive disorder

 

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

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."

 

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.

 

The Dr. was a non VA MH  Psychologist.  He was hired by QTC Medical Services for my evaluation.  He had a Doctorate in Psychology and started working VA Compensation related claims in 2012.

There were 2 documents in his review.  The first is titled

INTERNAL VETERANS AFFAIRS USE

MEDICAL OPINION DISABILITY BENEFITS QUESTIONNAIRE.

That form is 3 pages long, with Sections I - VIII.  I couldn't find a form number on it.

He checked the box 3A. that says THE CLAIMED CONDITION WAS AT LEAST AS LIKELY AS NOT (50 percent or greater probability) INCURRED IN OR CAUSED BY THE CLAIMED INSERVICE INJURY, EVENT, OR ILLNESS, PROVIDE RATIONALE IN SECTION C.

3C. RATIONALE: Claimant cited onset of symptoms during military service with worsening post military service. Issues of stigma addresses the lack of military treatment and self-report (feared impact on military service and opinions of other.) His wife has been the primary motivator for any discussions of mental health at all.  Symptoms appear consistent with those reported as emerging during service and have strong military themes.  There is no other etiology indicated based upon review of records.

 

 

The detailed report is 8 pages long (because he typed that much stuff), (think it is form 21-0960P-1 only has 2 sections to it and is titled:

Mental Disorders

(other than PTSD and Eating Disorders)

Disability Benefits Questionnaire

1.DIAGNOSIS a. Does the Veteran now have or has he/she ever been diagnosed with a mental disorder(s)?

YES .....If the Veteran currently has one or more mental disorders that conform to DSM-5 criteria, provide all diagnosis:

     Mental Disorder Diagnosis #1:Mood Disorder, Unspecified

3. Which of the following best summarizes the Veteran's level of occupational and social impairment with regards to all mental diagnoses? (check only one)

  Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

 

In his full writeup he is clearly stating that the major issues are service connected (he lists the clinical stuff), never reported due to issues of stigma, and have gotten progressively worse over the years to the point of seeking treatment.  He says PTSD screens were negative for a diagnosis of PTSD.  The prior screens and this diagnosis all point to words like anxiety, irritability, depression, poor sleep, poor concentration, avoidance, procrastination, forgetfulness etc.  Symptoms consistent with Major Depressive Disorder.  I think that is why the diagnosis came through as 9435 Mood Disorder unspecified, at least as likely as not caused by inservice injury or event.

The DBQ for PTSD is form 21-0960P-3 and has a section VI that talks about the traumatic event.  The form the Dr. used for my diagnosis doesn't even have that section or anything like it.

We have filed the NOD so I'll let you know what they say.  Who knows how long that will be but for now it is just a wait and see issue.