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When Can A Cue Be Used?

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10thFO

Question

I was turned down in August of '2003 for "Neck Strain" I wasn't to upset about it at the time, becuase they upped my DDD for lower back from 0% to 30%.

Now after combing through my records I have found proof of service connection where I was seen and sent to Physical Therapy for "Neck Strain" and probably nerve impingement (cervical spine) C6-C7. I never had xrays in the army, but low and behold just this past May I now have an Xray and MRI of my cervical spine whcih show C5/C6 level: small right paracentral and far lateral disc herniation causing mild thecal sac compression and moderate narrowing of the neural formina. There is "probable Nerve Impingment" at this level. Mild left sided neural formina narrowing also seen.

C6/C7 show the same diagnosis.

I know I can't appeal this ruling since it's over a year old, but what should I do now? File a CUE??? The evidence was clearly in My SMR's and they just overlooked it.

That's why I had asked about secondary to my lower back earlier, but never even thought about a CUE. Any help would be appreciated, as I need to somehow get the VA to recognize this pain. :(

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10th FO-

since this was a final and unappealed VA decision you could file a CUE claim- I posted some FAQs under CUE and we have had recent discussion here too on CUE claims.

I wonder however if this is a ratable condition-seems to me it would tie in with the DDD but I am not sure-

how did they word the denial of "neck strain"?

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I was turned down in August of '2003 for "Neck Strain" I wasn't to upset about it at the time, becuase they upped my DDD for lower back from 0% to 30%.

Now after combing through my records I have found proof of service connection where I was seen and sent to Physical Therapy for "Neck Strain" and probably nerve impingement (cervical spine) C6-C7. I never had xrays in the army, but low and behold just this past May I now have an Xray and MRI of my cervical spine whcih show C5/C6 level: small right paracentral and far lateral disc herniation causing mild thecal sac compression and moderate narrowing of the neural formina. There is "probable Nerve Impingment" at this level. Mild left sided neural formina narrowing also seen.

C6/C7 show the same diagnosis.

I know I can't appeal this ruling since it's over a year old, but what should I do now? File a CUE??? The evidence was clearly in My SMR's and they just overlooked it.

That's why I had asked about secondary to my lower back earlier, but never even thought about a CUE. Any help would be appreciated, as I need to somehow get the VA to recognize this pain. :(

10thFO,

Your claim will take a whole lot of medical evidence. Even if you were to win a CUE claim, you were discharged without a rating for the neck condition. The VA will argue that a single episode of neck strain does not represent a chronic condition and thus there was no reason to adjudicate it in the first place. Establishing the inserice event as connected to the current condition will still apply. It is much more complex than having a current MRI showing disease in the same part of your body. I assure you as will other veterans who have tried to work back injury claims that the VA will not roll over on this issue.

The failure of the medical doctors in the military to take xrays does not do anything to strengthen your claim. I think the case name on this is (Hayre). If anything the VA will use the faliure of the doctors to take x-rays as an indication that the condition in service was in fact mild and did not result in a level of symptomology allowing for a dignosis of a potentially chronic condition.

The above is not a legal opinion. I am not advising you to not pursue your claim. I am telling you to do a whole lot of reading of BVA claims if you want to be properly prepared to find out what you and any SO you get would be up against. As Berta and other recommend. Always get an SO to help you with your claim.

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