Should I file a CUE?

[jonnyohio]

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 January 18, 2019 by jonnyohio

[jonnyohio]

On 1/19/2019 at 6:25 AM, Berta said:

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

That's just it, he didn't have them.  However, he talked to me for 40 minutes and asked me about them.  I had them in front of me and he had me read things off that are in them.   We focused on the one entry with the most evidence.    I explained to him that the doctors writing is hard to read, but what I could make out, and that it states I was seen for "Shoulder pain, Knee Pain, Ankle Pain, stiff fingers".  Prior to this, I was seen for tightness in my throat (no pain), another one I had tightness in my throat with pain and it was diagnosed as strep throat.  The one with no pain was diagnosed as just stress related.   But he focused on the visit where I complained about joint pain, and I told him I could make out what looks like "RA Panel".

Top Part of my record (note:  I cropped the images so my SSN and other personal info aren't shown) - BERTA, this is what's in my SMRs:

2nd Page Bottom Part:

As you can see her writing is horrendous, but it's obvious she was thinking it was an inflammatory arthritis.  It looks like under RA Panel she wrote "Dr Mgmt", and that coincides with what she told me "If it gets any worse, see a doctor at your next command." (I was close to either separating or reenlisting)  I had extended out for 6 months and was considering reenlisting and this contributed to my decision to separate.  I separated in November that year.

" 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. "

He did not see them directly, no.  I explained what happened that I filed in 2007 with the help of a VSO and they denied it.  He asked what I filed for, I said among other things I filed mainly for RA.  He said that was smart and asked how I knew to do that.  I told him I based it on what the doctor told me in service and the fact my dad was diagnosed with it years ago.  He said that was good. Here is the relevant part of the denial in 2007:
 

When I first filed I ordered my service records, but I didn't get my outpatient records and I assumed that either they were lost or that doctors just failed to document my visits.   After all, the VA lists my SMRs as evidence. It wasn't until early last year I discovered that all my outpatient records were sent to some other place.  So I did a FOIA directly to that facility and they sent it all to me within a few months.  It appears they were wanting a medical opinion back then, but I didn't know what I know now so I didn't fight it, but they seem to indicate there is no evidence in my service record anyway, and since I had no other evidence I didn't know what to do.  I explained to Dr. Bash, since the doctor in the service told me there was nothing they could do about it, and I was familiar with my Dads diagnosis, I didn't seek treatment immediately after service.  It wasn't until 10 years after service I enrolled in the VA health care system (which I didn't know about until then) and tried to get help.  I was seen for a year and they told me the same thing as the military doctor said, that there wasn't anything they could do for me at that stage.  They directed me to take ibuprofen and exercise and when it got worse to come back.  So another 10 years went by and that's what I did.  I went back because now it's even worse and they set me up on a long term plan of care for it.

So, after discovering the entry in my service record that seems to clearly indicate the doctor suspected RA, I asked to reopen it and was promptly denied within 60 days after filing.  This time I submitted my SMRs and all my VA treatment records just to be sure they understood I had everything they claimed they had that they based their decision on in 2007-2008.  Here's the relevant part of their decision:

 

Here is their explanation for continuing to deny my claim:

So my VSO told me it's obvious they want a Nexus Letter.  No problem, except I can't find anyone willing to help me except Dr. Bash.  Unfortunately, he wants 10K because he said that I should be owed back pay plus I could easily get at or close to 100% since I'm on medication that pretty much makes 60% automatic for RA, and my medical record from service can establish I've had GERD since then too. He told me that's going to be at least 30%.  He said by the time he adds in all the little stuff I'll be getting very close to it if not 100%.

I'm just nervous about doing a CUE, because I have no clue when it comes to that.   I was just fine with getting a strong Nexus letter and proving service connection, and having them back pay me to Oct last year when I filed to reopen.  Then filing for an increase at a later date.   I haven't done a lot of research yet, but I thought I had to do the CUE when I filed the NOD.  I can do that at a later date?  Bash seemed to think my plan wasn't good because he said it would take years for me to get everything he felt I was owed and that I should just do the CUE immediately because he felt the error was an obvious mistake, and they should have automatically approved a rating for RA in 2007.  I know Dr Bash knows what he's talking about but before I even think about trying to come up with 10k, I need your opinion on this.  It just feels too risky.  If I had the 10k to spare, I'd just do it and get it over with.  If he had said 5k, I'd be able to handle that no problem.  But 10K is just too much for me right now to risk.
 

Edited January 20, 2019 by jonnyohio
Fixed some typos and grammer

[broncovet]

Well what I see here presents a big problem for you.  Here is why:

Read 38 CFR 3.156 which says, in pertinet part:

Quote

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided theclaim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

Here is why this is so problematic for you. You posted, in your "evidence" section of the denial that the VA stated:

"DTA letter sent August 19, 2007 which advised you to submit evidence......No response received to date.  "

end of decision quote.

Here is the deal:  If the VA asks you for evidence, and you dont provide them the same, they have a good reason to deny you.  This is not CUE on VA''s part, but they will say this is YOUR fault for not supplying the required evidence.  Its a mistake, when VA asks for evidence, to ignnore that letter.  You could write them and say, "I dont have any more evidence..you have it all".  

That may suffice.  But, a non response when VA requires evidence basically means you are "abandoning" your claim.  You will have to get past that, and Im not sure how.  

Additionally, they said something to the effect that your disability (arthritis) did not rise to the compensable level.  (earlier).  To refute that, you need EVIDENCE (medical) and compare it with the criteria for rating arthritis, where the doc said you had ______symptom, and that symptom is in the criteria for a 10 percent rating or higher.   

Berta may not agree, but I see it that your non response to their request for evidence constitutes an abandonment of the claim for the applicable period.  

Remember, Cue is all about effective dates.  Otherwise, you just simply file a new claim and dont worry about the effective date.  The main purpose of your cue, as I understand it, is to get retro backpay from when you first applied.  Now, I am not saying there are NOT other ways for you to earn an eed, but it appears to me that VA has an "out" in granting you 38 cfr 3.156 backpay because you didnt comply with their evidence request in 2007.  

 

 

[jonnyohio]

23 minutes ago, broncovet said:

Well what I see here presents a big problem for you.  Here is why:

Read 38 CFR 3.156 which says, in pertinet part:

Here is why this is so problematic for you. You posted, in your "evidence" section of the denial that the VA stated:

"DTA letter sent August 19, 2007 which advised you to submit evidence......No response received to date.  "

end of decision quote.

Here is the deal:  If the VA asks you for evidence, and you dont provide them the same, they have a good reason to deny you.  This is not CUE on VA''s part, but they will say this is YOUR fault for not supplying the required evidence.  Its a mistake, when VA asks for evidence, to ignnore that letter.  You could write them and say, "I dont have any more evidence..you have it all".  

That may suffice.  But, a non response when VA requires evidence basically means you are "abandoning" your claim.  You will have to get past that, and Im not sure how.  

Additionally, they said something to the effect that your disability (arthritis) did not rise to the compensable level.  (earlier).  To refute that, you need EVIDENCE (medical) and compare it with the criteria for rating arthritis, where the doc said you had ______symptom, and that symptom is in the criteria for a 10 percent rating or higher.   

Berta may not agree, but I see it that your non response to their request for evidence constitutes an abandonment of the claim for the applicable period.  

Remember, Cue is all about effective dates.  Otherwise, you just simply file a new claim and dont worry about the effective date.  The main purpose of your cue, as I understand it, is to get retro backpay from when you first applied.  Now, I am not saying there are NOT other ways for you to earn an eed, but it appears to me that VA has an "out" in granting you 38 cfr 3.156 backpay because you didnt comply with their evidence request in 2007.  

 

 

And that's what I was thinking.

The problem that my original filing posed was they would not give me a diagnosis at the VA, they would only speculate what it was. 

Last year they finally confirmed it was indeed inflammatory.  So I asked to reopen based on the diagnosis and the fact I had the diagnosis in service.  I understand that  a nexus letter at this point is a must, and based on similar claims I read if I have that I can appeal it and I will most likely get a rating for RA.  However, Dr. Bash is the one saying I could file a CUE.  I'm afraid of doing that because I don't feel like I have enough to win that.  I was hoping for just a strong medical opinion based on my records and current diagnosis and just appealing it.  But he wants 10K, which was just soul crushing to me because without a Nexus I'm most likely going to lose.  They'll just deny reopening it to avoid having to make a decision.

Keep in mind RA is rated differently.  If you have RA, it's an automatic 10% even if you have no problems with it or it doesn't affect you much at all.

So it does make me angry though that they had my SMRs and it should have been approved back then; even if just at 10%.  What more evidence did they need?  They had my service records that clearly show I had it in the service. 

But I feel you are right that the problem is, had I understood it, I should have responded like you said.  But I was dumb, and my VSO failed to advise me properly.  He had told me I needed medical evidence after the service, which I did not have because I never saw anyone for it other than the military doctor and the VA doctors.  Plus I have gaps in treatment, which is very common with this disease.

I appreciate your opinion broncovet, and thank you for the advise.

Edited January 20, 2019 by jonnyohio
edited to clarify something.

[Berta]

I agree with Broncovet-

Have you attached here the medical record that says 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.

Then again , if that statement is not from your SMRs, it wont help.

Do you have any proof of this in your SMRs:

"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."

Proof meaning the medical opinions on the X rays.

Broncovet raised the 2 points that would not make a CUE valid....in my opinion.

. "  I haven't done a lot of research yet, but I thought I had to do the CUE when I filed the NOD.  I can do that at a later date? "

Of course- I dont think you should be concerned with it -No deadlines on filing CUE claims.

I assume you are still within the NOD one year deadline.Make your argument in the NOD , and refer them to any attached evidence etc.

Send them any copies of your SMRs that make your point and Highlight the copies with a bright colored magic marker-If they didnt consider the X rays that were done in the military they should have but the attachments you made from April 1997 are not clear to me at all, as to what they say.But it does definitely seem to say R/O arthritis. The first time I read it I tyhought it said No arthritis-maybe that is what VA thought too- if they even read it.

Make your argument clear as part of the NOD-Use the right NOD form here-and make sure you refer them to any attachments and put your C file number, name and addressw on everything , and keep copies of the NOD for your records.

 

Have you tried any other IMO/IME doctors?

[jonnyohio]

19 minutes ago, Berta said:

Have you attached here the medical record that says this? 

Yes Berta, it's the 2nd image from my SMRs...next to "A" which stands for "Assessment" and above "R" which stands for "Recommend".

I assume R/O is an abbreviation for "Rule Out", but it could very likely be her abbreviation for "Rheumatoid/Osteo" since the next word is "arthritis", because she did point something out to me on my shoulder x-ray and said it was the early signs of it.  The VA has made notes of osteophytes in my knee on a recent x-ray, and that's probably what she was pointing out.  It was 22 years ago, so I don't remember everything she said.

But yes, I posted the image of what is in my SMRs.  Here they are again:

This next image is where it says:

Xray

A R/o Arthritis

R   Ra Panel
     DR MGNT

As for X-rays, she makes a note in the SMRs about a X-ray on my shoulder, but I can't read it.  Her writing is bad.  Another doctor did one on my ankle.  However, the actual x-rays are not in the files.  On the doctors making a note that they did it from what I can tell.  From my research, they apparently do not keep x-rays from SMRs past a certain time period.

But it's good to know that I don't need to do the CUE right away.  So basically I just need a strong medical opinion/nexus letter.  I know I can make arguments that "hey this is in my SMRs and here is my diagnosis" but I really want to get a nexus letter to improve the chances I'll win in appeals.

Thanks for the advise.  I guess I'm going to have to keep looking for a doctor since Dr. Bash wants me to pay so much. I wish he had quoted a bit lower, but I guess he is in high demand so he can ask quite a bit more than others.

Edited January 20, 2019 by jonnyohio

[jonnyohio]

28 minutes ago, Berta said:

Have you tried any other IMO/IME doctors?

I reached out to Dr. Anias but he never responded. I've been hunting for a Rheumatologist both online and locally and I've found one locally that seems like a good bet, because she gets a lot of good reviews from people that mention she takes her time with them.  She probably has zero experience with the VA and nexus letters though.  I've also wrote a lawyer in my state that meets all the qualifications, and I'm waiting to see if they contact me.  She lists on her website what cases she handles with VA claims and lists "musculoskeletal" as one so maybe she knows a doctor she can refer me to.  I was considering Valor4vets, but I'm not sure if I'd get a strong opinion letter from them that would hold up, so I was going to use them as a last resort.

My VSO recommends I file the NOD By August.

Edited January 20, 2019 by jonnyohio