Please review my CUE claim

[JKWilliamsSr]

I am in the process of filing a CUE from a 2009 disability claim.  I am almost finished with my document and will post the text of here for opinions.  Before I do this I will lay the ground work for why I am filing a CUE.

I filed for a bilateral foot disability, Bilateral Ankle Pain and Back disability.  I was denied for the foot disability because they stated it was not service connected.   They stated they could not find anything in my records that shows this disability.   I now have a copy of my records and it clearly is in my records.

My ankle disability is secondary to my foot issues.  I added it initially because a friend told me to file every ailment I have that pertain to my lower extremities because they may all tie together (I currently have 20% for degenerative joint disease in my knees).  The VA acknowledged my back issues during service but since there was no definitive diagnosis I could not be granted a rating for it.

So with all of that said.  As soon as I can I will post my statement filing for a CUE.

[JKWilliamsSr]

Here is my CUE Statement.  I borrowed the first part of my statement from another person's example.

 

I am requesting a motion to revise a rating decision made by the Houston, TXVA Regional Office on August 11, 2009. The decision in question is for myself, [REDACTED}, VA File Number [REDACTED], with the Rating Decision date of April 28, 2010.

 

Specific issue challenged: Service connection for Bilateral Foot Disability, Bilateral Ankle Pain, Back Condition

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The final decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed:  

 

The statement of case was sent to me accompanied by a letter dated June 10, 2013.

The statement of case dated is June 5^th 2013 and was not appealed. 

 

AND 

 

Either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and  the error is "undebatable;"

The statement of case dated June 5^th 2013 list the following in part as evidence used in the determination of my claim.

 

1. Service treatment records for period of February 10, 1986 to July 8, 1996
2. V.A. Houston Medical Center examination dated April 2, 2010
3. Service Personnel Records from September 5, 1986 to September 5, 1996

 

Per the Statement of case on my claim for bilateral foot disability:  A decision for service connection for bilateral foot disability is denied.  The reason for the denial per the Statement of Case is that Service Medical Records or VA Medical Center treatment records show no findings regarding the claimed disability.  

 

Submitted evidence:

This evidence was retrieved from my Service Treatment Records and fall between the period of February 10, 1986 to July 8, 1996:

 

Standard Form 88 - Report of Medical Examination (Feb 10 1986)

Standard Form 600 - Symptoms Diagnosis, Treatment, Treating Organization (Mar 25 1995)

Standard Form 513 – Consultation Sheet (Mar 28 1995)

Radiology Report (April 4 1995)

Standard Form 88 – Report of Medical Examination (April 1 1996)

 

It is reasonable to interpret that the listed forms were available to the rater at the time the decision was made.  The dates for each of these forms fall within the date range used as evidence by the VA in making the decision.  I would also point out that each form I submit has the statement “Copy made by VARMC St. Louis from a record in VA’s Possession.” stamped on each page.  The statement clearly points out the records were in the VA’s possession throughout the entire process.

38 CFR 4.6 - Evaluation of evidence - The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

The following information is listed in my service medical records and was not considered in the processing of my claim.

1. On Feb 10^th 1986 I was given an entrance physical at the Philadelphia MEPS that has a clinical evaluation that my feet were normal. 
2. On March 25^th 1995 I went to sick call reporting right foot pain where I was unable to bear weight on my foot without severe pain. I was seen by Lt Donald McKenzie. The record shows that my issue was worse when barefoot.  The record shows a flat arch and fasciitis.  I was referred to podiatry for further examination and to consider orthotics.

 

3. On April 4^th 1995 I was seen by Capt. Mary Cook who was a Podiatrist. She notes on my record that I have rigid flat foot, mild tenderness and plantar fasciitis.  I was given inserts for my boots.

1. On April 4^th 1995 an X-Ray was conducted on my foot which shows flat feet.

2. On April 1^st 1996 I was given a separation physical examination and the clinical evaluation is that my feet were abnormal with Moderate Pes Planus as the diagnosis

AND

the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

The difference of the outcome is twofold.   The Bilateral Pes Planus with Plantar Fasciitis should be rated at 50% and this alone would take my Combined Disability Percentage to 70% (rounded up from 65).  The second part of this outcome is two additional disabilities were claimed and are secondary to my foot conditions.  Erroneously denying my foot disabilities directly impacted my ability to show service connection for my ankle and back disabilities.  

 

Claim for Bilateral Ankle Pain:  Entitlement to service connection for bilateral ankle pain Is denied.  The reason for denial per the statement of case is that Service Treatment records show no evidence of complaints regarding or treatment for this condition.   No evidence was submitted showing that I have a current, chronic bilateral ankle pain condition that began during or was caused by military service.

 

Claim for Back Condition:  Entitlement to service connection for back condition is denied. The reason for the denial per the statement of case is although there is record of treatment for episodes of discomfort, sprain and spasms there is no diagnosis of a chronic back condition.  With no permanent residual or chronic disability subject to service connection shown or demonstrated by evidence following the year of service, service connection is not warranted.

 

I request reconsideration due to a Clear and Unmistakable Error (CUE) was made in the adjudication of my claim.  All available evidence was not properly reviewed and considered.  This claim of CUE, is made Under the Title 38 rules for Clear and Unmistakable Error

Sincerely

 

 

[Redacted]

[broncovet]

Bravo!  BUT

A request for an earlier effective date under 38 cfr 3.156 B or 3.156 C, may accomplish the same thing, or even better, because it sounds like VA "didnt have" some of your evidence.  Are these evidence documents listed in the "evidence" section of your decision?  

The evidence needs to be both new and material.  "New" means the VA hasnt seen it before, and material means that it has a reasonable chance of substantiating your claim.  

If the "key evidence" (that is, the evidence documents one or more Caluza elements) then check to see if that document is included as evidence.  If its "not" in the evidence section, submit new evidence.  If it IS in the evidence section, then VA had the evidence they just did not read it or ignored it.  

[Berta]

I  think you may have a chance to re-open the claim with this New and Material evidence-the SMR entries

Please read all of the info here on 38 CFR.3.156. Use the hadit searh feature.

It could gain you the same result a a CUE would.

If we can see the decision you think holds a CUE, and the evidence list they used, we can help more.

Cover your C file #, name, address prior to scanning the decision and  Evidence list and attach it in this thread.

 

[Berta]

Thanks Broncovet -we were on line at the same time. 38 CFR 3.156 might do the trick.

[JKWilliamsSr]

This is what is listed in the statement of case as the evidence they used in making the decision.  This is the exact wording.

1. Service treatment records for period of February 10, 1986 to July 8, 1996
2. V.A. Houston Medical Center examination dated April 2, 2010
3. Service Personnel Records from September 5, 1986 to September 5, 1996

 

I am going to put that particular page of the SOC up.  Just need to scan it.

Edited January 25, 2019 by JKWilliamsSr
additonal information

[broncovet]

Yea..that is the problem.  You dont know for sure if VA had your evidence or not, because this is non specific.  Go ahead and try the new evidence, 38 cfr 3.156 and order your ciflie to know what evidence the va has.  Then you can file cue..its never to late to file cue, but you may not need to