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Should I file a CUE?

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jonnyohio

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Hello everyone, I really need some advice.  I am about to embark on a long fight, and I hope I have the energy to do it and I hope I'm on the right path.  So I'm hoping at least one person on here can advise me if I'm going down the right path or not.  Here is my story:

In 1997 while in the service I started to have joint pain out of no where.  I went to the doctor because suddenly my ankle started to hurt when I tried to go for a run after work.  They did an x-ray, doctor said it appeared I had arthritis in my foot and asked me if anything else was going on?  I told him, yes, as I had been having pain in my shoulders.  He told me I should see a doctor and have it checked out.  I did, and the doctor did x-rays on my shoulders.  She told me it appeared I had early stage of an inflammatory arthritis.  I asked what I could do about it?  She said there was nothing they could do, just take ibuprofen and exercise, and see a doctor at my next command.  Well, I had extended out 6 months because I was having my first child and thinking of doing another 4 years of service.  After that diagnosis, I decided to separate as I worried about not being able to meet PT standards (In hindsight, I should have stayed in and made them medically discharge me).   My dad had been diagnosed with RA when I was younger, but at the time I was ignorant of it and just thought it was no big deal.  After service I went 10 years of having symptoms on and off again.  At 32, it got bad enough that I decided to try seeing someone about it.  I found out that I could go to the VA for healthcare, which was great because at the time I had no insurance.

So I ended up seeing a Rheumatologist at the VA and a VSO helped me file a claim, and I ordered my service records.  When I got my service records there was next to nothing in it, just my entrance physical and exit exam.  I did not know that my outpatient records had been transferred to another facility.  After a year of going to the VA (2007-2008), the VA Doctor didn't give me a definitive diagnosis, but told me that he was pretty sure it was either seronegative RA or early psoriatic arthritis.  He offered me no treatments other than the same thing the military doctor told me:  NSAIDs and exercise.  Then told me I didn't need to be seen until my symptoms progressed.  So another 10 years went by and slowly it got worse; starting in 2016 I began having more severe flare-ups.  So in (2017) I enrolled once again in the VA healthcare system and started going back.  I got pretty bad, and my GP gave me a steroid burst, started me on diclofenac, and put me in for referrals (also got some imaging scans ordered to check the progress to see if I had any damage).  During this time I started getting noticeable swelling in my finger joints.  So I finally I got a diagnosis for inflammatory arthritis from the VA just this past July and they immediately started me on Plaquenil.  Then a few months later, started me on Sulfalazaline, and will start me on Methotraxate within the next month or so.   I have a new local VSO (old one retired) and she's pretty good.  She said I'd have to file to reopen my previous claim but warned me that it will most likely get denied and I'd have a long fight ahead of me, considering the circumstances.  Prior to meeting with her I tracked down my OP service records and low and behold my appointments are in there.  First, there is an appointment I forgot about that was the first symptom I had related to what they are saying is GERD, and then shortly after is the appointment for my ankle and then right after that is the appointment where it says I was seen for should pain, knee pain, ankle pain, and stiffness in my fingers.  It's hard to read the doctors writing, but near the bottom I can make out this:

"A  R/O Arthritis" and under that it clearly says "R RA Panel DR MGNT"  and then two other things I can not for the life of me read.

From what I understand "A" stands for Assessment and R/O means "Rule Out"
The R stands for recommend, and she was recommending an RA Panel which is a blood test to test for Inflammatory Arthritis.  This all supports my statements I've made in my claim and a statement I said to the VA doctor 10 years ago that is documented in my VA medical records (which I have).

For my ankle pain, it appears that doctor just treated it like it was a sprain.  But makes notes that I told him I heard and felt a "pop".

My original claim was for RA and they rejected stating in their letter than there was no evidence of me being treated for a chronic condition during or after the service.

A couple months ago I got denied for trying to reopen.  I sent them all my VA records and military records, showing that I was seen in the service for the same thing I'm being seen for now, and the VA records now have my diagnosis.  Got denied saying the evidence wasn't new and material, of course.

So this morning I spoke with Dr. Bash, who says he's willing to write a Nexus letter for me and do DBQs (Yes, he is expensive, but he's the best fit for me from what I can see).  He recommended I file a CUE, because he says that I should have been approved in 2007 since my military records show I was seen for it while in the service and it's obvious they thought it was inflammatory and he tells that is an error.  He also told me he is confident I will end up with 100% or close to it, since being on the meds they have me on is an automatic high percentage.  My VSO said that I could take the route of filing a NOD and going through RAMP.  However, she recommended I get a NEXUS letter and possibly a lawyer because she said I might need better help than she can provide, but that if I at least got a NEXUS letter it would greatly improve my chances since that was obviously what the VA is looking for in their response to me.

So my question is, is a CUE the way to go?  It looks complex and risky.  Would you advise I get a lawyer to help me with this?  10 years of back pay is a pretty good amount.  I'm really considering forking over the money to Dr. Bash to get a good medical opinion but it's really intimidating going through this, and I feel like I'm alone.

Edited by jonnyohio
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 "He recommended I file a CUE, because he says that I should have been approved in 2007 since my military records show I was seen for it while in the service and it's obvious they thought it was inflammatory and he tells that is an error.  " 

Dr Bash is great- I assume he had your SMRs when he said that. Did he have them?

"A couple months ago I got denied for trying to reopen.  I sent them all my VA records and military records, showing that I was seen in the service for the same thing I'm being seen for now, and the VA records now have my diagnosis.  Got denied saying the evidence wasn't new and material, of course."

Was that why Dr Bash suggested a CUE- on that denial? If so can you scan and attach the denial here ( Cover you C file #,name, prior to scanning it.)

"However, she recommended I get a NEXUS letter and possibly a lawyer because she said I might need better help than she can provide, but that if I at least got a NEXUS letter it would greatly improve my chances since that was obviously what the VA is looking for in their response to me."

That is true- a medical  inservice Nexus is mandatory for this type of claim.

"So my question is, is a CUE the way to go?"

One problem with all this is that you do not know if the RA will be awarded as SC.

If it  is awarded as service connected their could be CUE Potential or even a 38 CFR 3.156 claim, to get a better eed. Or maybe Dr Bash saw a CUE in the most recent denial.  Or he meant the 2007 denial.

He recommended I file a CUE, because he says that I should have been approved in 2007 since my military records show I was seen for it while in the service and it's obvious they thought it was inflammatory and he tells that is an error.  " If that ,or any decision contained a CUE, it also needed to support at least a 10% rating at that time.

If we can see here those denials (I assume Dr Bash has seen them?) we can better advise on CUE- and everything you need to know on CUE is here as well in the CUE forum.

Cover your C file prior to scanning them and attaching them here.

 

 

 

 

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Berta is our CUE expert, and I know better than to dispute her advice.  She has had good luck filing Cues to claims that still can be appealed.  

However, unless you have some degree of expertise in VA law, I suggest you appeal, when you can, file Cue when you have passed the one year appeal period.  

My reasons are simple:  Cue is the "highest" standard of review in Veterans law.  Much lower is an appeal.  Even if you could "jump over the tall CUE bar", why chance it.  The are several things making CUE harder for you than an ordinary, timely appeal.  

First, you lose the benefit of the doubt.  That is a big deal.  In Cue that is replaced with undebatable.  

Next, Cue has to be "pled with specificifty" where you normally have to cite the regulation(s), the VA violated.  Now, if you are very familiar with the 38 cfr's, like Berta is, thats not too high of a bar to jump over.  But, if you are NOT, well that is not so easy.  

Lastly, you have one more hurdle to jump over.  You have to prove the error was "outcome determinative."    Its not enough to identify an error..you have to show that error resulted in fewer benefits.  

If you had already been awarded benefits, then the outcome determinative part is easier.  An example of that is you get awarded benefits for arthritis in 2019, and you file cue saying that you should have been awarded the same in 2008, when you first applied.  This fixes the outcome determinate part..VA does not dispute you are SC..the only question is when.  

However, when you are not service connected NOW, you need to address WHY.  If you were not sc in 2011, and you are still not sc now, chances are good you need one or more of the caluza elements:  diagnosis, in service event or aggravation, and nexus.  

Dr. Bash can provide a diagnosis, and he can provide a nexus, but only if you have an in service event or aggravation documented.  

Of course, I dont know why/if you dont have an "in service event" documented.  Chances are good, there are some service records or yours that are floating around, that VA did not have earlier.  This screams obtaining these records, and then reopen due to 38 cfr 3.156c.  

It sounds like, however, you have tried to reopen.  You need to address this.   If you submitted new evidence BUT there is still no "in service event or aggravation", then they wont likely reopen it.  "Material" evidence means that this evidence has a reasnonable chance of substantiating your claim.  

When the rubber meets the road, you have to document "what event" in service let you your arthritis.  Did you have a fracture?  A sprain is less likely to lead to arthritis.  Arthritis is often considered a "degenerative" disease, that is, an old persons disease.  Everyone that gets arthritis is not necessarily service connected just because they served in service.  

Let me give you a fairly real world example:

In boot camp, they often make troops carry incredibly heavy loads.  These back packs sometimes weigh more than 100, sometimes even more than 150 pounds.  Carrying that much weight, especially repeatedly over time, can stress the joints to the max and lead to arthritis.  Because the military has figured this out, I think the back packs are much lighter than they used to be.  

Another example is your MOS.  For troops who "jump out of airplanes" regurarly, its pretty much a given that, when you jump out of a plane its very hard on your joints, such as your knees.  If a vet can document they made jumps, its pretty easy to get a doc to provide a nexus, that your jumps in service "at least as likely as not" caused your knees degenerative arthritis.  

For me, I fractured my leg in service, and have documentation of same.  Still, Im NOT service connected for my arthiritis that led to a total knee replacement.  The caluza element I lack is a nexus.  Yes, Dr. Bash could likely review my records and opine that my fracture "at least as likely as not" caused my arthritis, which led to a total knee replacement when the joint went "bone on bone" after time.  Since Im 100 percent, I have not aggressively persued the arthritis mostly because it probably wont mean any additional compensation for me, so why bother?  

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Berta an I had a rather detailed explanation of CUE, along with the regulations, here:

Its my opinion, if you are considering a CUE, that you read the post I cited, above, and make sure you understand the rules for CUE thoroughly, like Berta does.  If you dont understand the rules for CUE, you are unlikely to win, just like you are unlikely to win Wimbledon, if you dont understand the rules of tennis thoroughly.  

I made the mistake of filing a CUE  about 10 years ago, and I really did not understand CUE at that time.  I was not alone.  My attorney is reluctant to file a CUE, and will not do so, unless its the only way.  Filing an appeal or reopening due to 38 cfr 3.156 is much easier than a cue, reminding you that you retain the benefit of the doubt, but NOT with cue.  

Let me explain.  Lets say an attorney reviews your file, and he spots a CUE, for sure.  

 

Edited by broncovet
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Broncovet- I feel you have Great expertise with CUE and 38 CFR 3.156.!!!!!❤️

And please dispute me whenever you think I am wrong.

Dr Bash has raised CUE potential for a few vets here over the years- but he does not write the CUE for them, as far as I know.

You said "Filing an appeal or reopening due to 38 cfr 3.156 is much easier than a cue, reminding you that you retain the benefit of the doubt, but NOT with cue. "

You are 100% correct!

The BVA website was updated  on the 16th of Jan and has a lot of info on RAMP, Moderization Act, and the BVA Appeals status tool.

Here is a fairly recent BVA award under 38 CFR 3.156:

 

"Of relevance to the present case is 38 C.F.R. § 3.156(c), which provides in part that at any time after VA issues a decision on a claim, if additional pertinent service treatment records are obtained, VA will reconsider the claim. If the claim is subsequently granted based all or in part on the received service records, an effective date back to the date of receipt of the previously decided claim may be granted. 38 C.F.R. § 3.156(c). As noted above, relevant service treatment records were not of record at the time of the August 2003 and August 2004 denials, but were later obtained prior to the December 2012 rating decision granting service connection. Additionally, these service treatment records were, in whole or part, the basis of the awards of service connection, as these records confirmed an in-service injury. Where an award is made based all or in part on service department records associated with the claims file after an initial denial, the effective date is the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3). Thus, the Board concludes the proper effective date in the present case for each of the service connection awards for residuals of a right elbow injury is April 10, 2003, the date VA received the Veteran's initial service connection claim. An effective date prior to that date is not warranted, as the Veteran has denied and the record does not reflect receipt of a prior service connection claim for any residuals of a right elbow disability."

 

ORDER An effective date of April 10, 2003, for the award of service connection for limitation of flexion of the right elbow is granted.

An effective date of April 10, 2003, for the award of service connection for a scar of the right elbow is granted.

An effective date of April 10, 2003, for the award of service connection for an injury of the brachioradialis muscle of the right elbow is granted.

An effective date of April 10, 2003, for the award of service connection for scars of the right elbow is granted.

https://www.va.gov/vetapp18/files5/1826914.txt

( A great example of how 38 CFR 3.156(c) can work.)

 

Edited by Berta
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Thank you Berta.  Well, yes, I will dispute what you say, (if I think you are incorrect)  the trouble is your answers are so researched and well thought out, and you have such great expertise, its hard to find mistakes..and those that I do find are usually MY mistakes.  So, if you want me to correct you, please stop being right all the time and give me a chance!!!    LOL.  

You have a passion for Veterans law that is, well I do understand your reasons why...and I appreciate it.  Its because of your promise to your late husband..which you kept.  Its so refreshing when people keep their promises..there are so many who do not.  

Normally the way I keep promises is not to make them!!!  Or, if I have to make a promise, I try to under promise and over deliver.  You certainly over delivered in your promise to your husband!!  

Years ago, I met a guy who made all kinds of promises.  You see, nobody beleived him unless he said "I promise" or "I guarantee you . ...."    

At a minimum, I try to promise sparingly..if you get too many promises stacked up, sometimes you cant keep them all.  

I do understand "a little" about widows.  Why?  Because I married one.  Widows are definately not the same, but sometimes they do have a lot in common.  

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That was LOL for me too Broncovet!!!

I hope the weather has not affected too many members-

We are being asked to stay off the roads today and my church is just providing a short service for anyone who can walk to the church. The electric company is prepared for any power outages.

They expect the biggest problems to hit us here in southern tier, NY, this afternoon. I have a foot of snow on the roof of my car already.

 

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