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 missed that-

I wonder even if the 5293 originally was the right DC.

 

Dr Anaise ,who wrote this article has helped many vets here with their claims.I think he requires an inperson exam, and his fees do not seem to be too high:

http://www.danaise.com/understand-the-new-rating-for-back-and-neck-spinal-disability/

He certainly seems to know his stuff- I regret I am not good at all on these types of conditions-because they seem to involve many diagnositic codes.

One thing I did learn is that these conditions might have caused some of  your secondary conditions that you now have.VA is so dumb that a claim for secndarys might well need an IMO/IME- an opinion from a real doctor, with a full rationale associating the secondary condition to the main C5-C6 disability.

5241 is included here:

General Rating Formula for Diseases and Injuries of the Spine
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):
With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease
Unfavorable ankylosis of the entire spine	100
Unfavorable ankylosis of the entire thoracolumbar spine	50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine	40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine	30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis	20
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height	10
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
5235 Vertebral fracture or dislocation
5236 Sacroiliac injury and weakness
5237 Lumbosacral or cervical strain
5238 Spinal stenosis
5239 Spondylolisthesis or segmental instability
5240 Ankylosing spondylitis
5241 Spinal fusion
5242 Degenerative arthritis of the spine (see also diagnostic code 5003)
5243 Intervertebral disc syndrome
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25 .
All long bunch of other stuff came out on the paste:
With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months	60
With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months	40
With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months	20
With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months	10
Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

The Hip and Thigh

	Rating
5250 Hip, ankylosis of:
Unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated	3 90
Intermediate	70
Favorable, in flexion at an angle between 20° and 40°, and slight adduction or abduction	60
5251 Thigh, limitation of extension of:
Extension limited to 5°	10
5252 Thigh, limitation of flexion of:
Flexion limited to 10°	40
Flexion limited to 20°	30
Flexion limited to 30°	20
Flexion limited to 45°	10
5253 Thigh, impairment of:
Limitation of abduction of, motion lost beyond 10°	20
Limitation of adduction of, cannot cross legs	10
Limitation of rotation of, cannot toe-out more than 15°, affected leg	10
5254 Hip, flail joint	80
5255 Femur, impairment of:
Fracture of shaft or anatomical neck of:
With nonunion, with loose motion (spiral or oblique fracture)	80
With nonunion, without loose motion, weightbearing preserved with aid of brace	60
Fracture of surgical neck of, with false joint	60
Malunion of:
With marked knee or hip disability	30
With moderate knee or hip disability	20
With slight knee or hip disability	10

3 Entitled to special monthly compensation.

The Knee and Leg

	Rating
5256 Knee, ankylosis of:
Extremely unfavorable, in flexion at an angle of 45° or more	60
In flexion between 20° and 45°	50
In flexion between 10° and 20°	40
Favorable angle in full extension, or in slight flexion between 0° and 10°	30
5257 Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe	30
Moderate	20
Slight	10
5258 Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint	20
5259 Cartilage, semilunar, removal of, symptomatic	10
5260 Leg, limitation of flexion of:
Flexion limited to 15°	30
Flexion limited to 30°	20
Flexion limited to 45°	10
Flexion limited to 60°	0
5261 Leg, limitation of extension of:
Extension limited to 45°	50
Extension limited to 30°	40
Extension limited to 20°	30
Extension limited to 15°	20
Extension limited to 10°	10
Extension limited to 5°	0
5262 Tibia and fibula, impairment of:
Nonunion of, with loose motion, requiring brace	40
Malunion of:
With marked knee or ankle disability	30
With moderate knee or ankle disability	20
With slight knee or ankle disability	10
5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated)	10

The Ankle

	Rating
5270 Ankle, ankylosis of:
In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity	40
In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10°	30
In plantar flexion, less than 30°	20
5271 Ankle, limited motion of:
Marked	20
Moderate	10
5272 Subastragalar or tarsal joint, ankylosis of:
In poor weight-bearing position	20
In good weight-bearing position	10
5273 Os calcis or astragalus, malunion of:
Marked deformity	20
Moderate deformity	10
5274 Astragalectomy	20

Shortening of the Lower Extremity

	Rating
5275 Bones, of the lower extremity, shortening of:
Over 4 inches (10.2 cms.)	3 60
3 1/2 to 4 inches (8.9 cms. to 10.2 cms.)	3 50
3 to 3 1/2 inches (7.6 cms. to 8.9 cms.)	40
2 1/2 to 3 inches (6.4 cms. to 7.6 cms.)	30
2 to 2 1/2 inches (5.1 cms. to 6.4 cms.)	20
1 1/4 to 2 inches (3.2 cms. to 5.1 cms.)	10
Note: Measure both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Not to be combined with other ratings for fracture or faulty union in the same extremity.

3 Also entitled to special monthly compensation.

The Foot

	Rating
5276 Flatfoot, acquired:
Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances
Bilateral	50
Unilateral	30
Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:
Bilateral	30
Unilateral	20
Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral	10
Mild; symptoms relieved by built-up shoe or arch support	0
5277 Weak foot, bilateral:
A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness:
Rate the underlying condition, minimum rating	10
5278 Claw foot (pes cavus), acquired:
Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity:
Bilateral	50
Unilateral	30
All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads:
Bilateral	30
Unilateral	20
Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads:
Bilateral	10
Unilateral	10
Slight	0
5279 Metatarsalgia, anterior (Morton's disease), unilateral, or bilateral	10
5280 Hallux valgus, unilateral:
Operated with resection of metatarsal head	10
Severe, if equivalent to amputation of great toe	10
5281 Hallux rigidus, unilateral, severe:
Rate as hallux valgus, severe.
Note: Not to be combined with claw foot ratings.
5282 Hammer toe:
All toes, unilateral without claw foot	10
Single toes	0
5283 Tarsal, or metatarsal bones, malunion of, or nonunion of:
Severe	30
Moderately severe	20
Moderate	10
Note: With actual loss of use of the foot, rate 40 percent.
5284 Foot injuries, other:
Severe	30
Moderately severe	20
Moderate	10
Note: With actual loss of use of the foot, rate 40 percent.

The Skull

	Rating
5296 Skull, loss of part of, both inner and outer tables:
With brain hernia	80
Without brain hernia:
Area larger than size of a 50-cent piece or 1.140 in 2 (7.355 cm 2)	50
Area intermediate	30
Area smaller than the size of a 25-cent piece or 0.716 in 2 (4.619 cm 2)	10
Note: Rate separately for intracranial complications.

The Ribs

	Rating
5297 Ribs, removal of:
More than six	50
Five or six	40
Three or four	30
Two	20
One or resection of two or more ribs without regeneration	10
Note (1): The rating for rib resection or removal is not to be applied with ratings for purrulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity.
Note (2): However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis.

The Coccyx

	Rating
5298 Coccyx, removal of:
Partial or complete, with painful residuals	10
Without painful residuals	0

(Authority: 38 U.S.C. 1155)

[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct. 2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 67 FR 48785, July 26, 2002; 67 FR 54349, Aug. 22, 2002; 68 FR 51456, Aug. 27, 2003; 69 FR 32450, June 10, 2004; 80 FR 42041, July 16, 2015]

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[Berta]

"Berta,  they actually used Dc 5241 on the rating decision but if you noticed they didn't use it anywhere in the letter rated me under the old criteria

So do you think I should make any reference to the law requiring them to use the old material why just leave that alone"

After reading it all -I would leave it out of the CUE Carmand-you are right-

[Carmand47]

I went into my regional ofc to turn in my cue.  They gave me the run around. They said I have to re-open the claim.  They said they used my neurosurgeons letter.  I said if they did how'd did they come to the decision that they did. They said it was a simple type o. Based off of thats schedule at that time I know I qualified. I'm sure of it.  I'm not sure what happened.  It's discouraging. 

[Carmand47]

I went into my regional ofc to turn in my cue.  They gave me the run around. They said I have to re-open the claim.  They said they used my neurosurgeons letter.  I said if they did how'd did they come to the decision that they did. They said it was a simple type o. Based off of thats schedule at that time I know I qualified. I'm sure of it.  I'm not sure what happened.  It's discouraging. 

[Carmand47]

What is the form you use to file a cue. I'm going to mail it in. 

[Berta]

There is no form for a CUE. I wrote mine always, as a letter and I filed my most recent CUEs with the Intake Center in Janesville-

Mail to: 
DEPARTMENT OF VETERANS AFFAIRS
CLAIMS INTAKE CENTER
PO BOX 4444
JANESVILLE, WI 53547-4444

or Fax to: 
TOLL FREE: 844-531-7818 & 248-524-4260 (Utilized for Foreign Claimants)