How to write an effective CUE letter

[Carmand47]

This is a CUE under auspices of CUE, 38 USC, 1509A.

I have Enclosed copies of the following decisions:

 

Decision letter dated 27Apr04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99.  

Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service.

An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received.

 An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain.

Page 4, paragraph 2 the decision dated 27Apr04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

 

 a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.

 

 

[Berta]

I apologize for being abrupt-

You do have the right idea as to what a CUE is and I commend you for that!

It will take me time-to go through all this but one question----

Carmand- if the VA had done the proper percentage on this decision,dated 27Feb04,  and your evidence would have garnered the  30 % ,  then all other decisions after that would have had the proper rating....do you agree?

What I am trying to determine is what was the first decision that made the error (which could certainly impact on other decisions, but I am trying to find the best EED (Earliest Effective Date) possible.

The correct citation is 38 USC 5109a.

'This is a claim of clear and unmistakable error under auspices of 38 USC 5109a.

Tell them they did not  thoroughly and conscientiously study  this probative evidence they had from you: 

"a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC"

(Also it appears the MRI narratiive was not considered.- tell them that as well if they did not seem to use it)

I feel the VA violated my rights under :

§ 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." 38 CFR 4.6

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay."

I would change the last statement to :

This critical error was detrimental to me because it negatively  affected the amount of compensation I have  received, as a manifested negative outcome, since the error was initially made. 

---------------------------------------------------------------------------------------------------------

Do you agree that if the 2004 error had not been made, it would follow the subsequent claims, and therefore they would have to account for the error (and hopefully retro) back to the 2004 decision?

It would create CUE in subsequent decisions but if they award this CUE back to 2004, they would have to pay the retro anyhow-- meaning maybe you only need this 2004 decision to file the CUE on?

I am also trying to reduce the CUE you first wrote ,to be as simple for them as possible.

I do hope others chime in....we are getting a thunderstorm warning and that will cause my PC to act up-this was the first really nice day we have had in May. 34 degrees two days ago, 82 degrees today.

BTW I saw you have dealt with a LOT in the MIL, and you did very well on that issue.

And  if you disagree with the date of 2004, please advise.

And add anything else under the 38 4.6 part that was probative to your proper %,if you can but I think you got them on this:

"Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time."

 

Edited May 19, 2019 by Berta

[Carmand47]

 

₴ 4.6 Evaluation of evidence

This is a CUE under auspices of CUE, 38 USC, 1509A.

 

I have Enclosed copies of the following decisions:

 

Decision letter dated 27Feb04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99.  

Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service.

An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received.

 An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

 

 a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.27feb04 spt doc decision ltr.pdf

[Carmand47]

berta

thank you for your patience. no apology needed.

Yes i do agree that all other decisions would have been proper.

I was initially awarded 10% for service connection on neck but I disaagree and asked for a reevaluation that letter i can find anywhere. but as you can see they have it noted very well. i did have the decision ltr for the increase of 20% 22may01. they gave me the 20% back to the original effective of 20may99.

now with the decision ltr for 27Feb04 they referenced the 10%instead of the 20% given in may. So this is why you think i should just use the 27feb04 ltr.

i think because i filed the increase 30jan03 that eed  is correct but the percentage is wrong.

[Carmand47]

Berta i want to think you for your input you sure do know your stuff. I have had to deal with alot while i was in. and since ive been out this road hasnt been easy either but God has kept me and my family. I was a single mother of two at the time i left the service. it was a struggle pushing through injuries, pain and constantly battling the bureacracy of the va system not knowing the regulations or how to get approved. i just did the best i could. It took me to 2003 before i was awarded enough where my children could be added for benefits. then i was able to get my finances straighten out. then 2004 until they granted me permanent an total unemployability. I failed to look closely at my paperwork and thats not going to ever be the case anymore especially where va is concerned. Its great knowing that there  are people like you and this forum community that can help. because i dont remember anything like this 20+yrs ago. Its a beautiful thing.

[Carmand47]

hello berta

what do you think?

This is a claim of Clear and Unmistakable Error under auspices of, 38 USC, 5109a.

The VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had:

It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04.

Please see the enclosed supporting documents:

a letter dated 8/22/03 from my neurosurgeon at the time from the neurosurgical group of greater Louisville in southern Indiana Dr. David A Petruska, M.D., with my MRI results dated 8/20/03 Dr. Joy D. Foster, M.D. and Dr Peter A. Rothchild, M.D., from Open MRI LLC.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstrateable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

I feel that the VARO violated my rights under:

₴ 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 consideration of the rating board in arriving at determination of the evaluation of disability. Every element in any way affecting the probate if value to be assigned to the evidence in each individual claim must be thoroughly can consciously studied by each member of the rating board in the light of this established policies of the Department of Veterans affairs to the end that decisions will be equitable and just is contemplated by the requirements of the law 38 CFR 4.6.

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was applied on the decision letter dated 27Feb04 It would have increased my rating for my Status post discectomy and anterior Fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This critical error was detrimental to me because it negatively affected the amount of compensation I have received as a manifested negative outcome since the error was initially made.

 

 

 

[Carmand47]

let me know if i need to make any changes. Thank you