Asking for an opinion on a CUE

[Emmafrost1111]

Thank-you in advanced for reading and if anyone can provide opinion.

I filed a VA Claim in 1990 less then year post leaving Active Duty service w/honorable discharge.  I vaguely recall filing it because I was in a bad place.  I remember walking into the the DC VA Hospital in 1990 to seek medical care and asked for an appointment to see a VA Dr. for a continuity of symptoms/medical issues that began and worsened in service and continued. I had no idea that I had to be SC to receive VA care in 1990 less then year off active duty.  So that went down well as you can imagine especially since I was there to seek help for what I called unresolvable stress, TMJ pain/headaches and I was not sleeping.  In any event, I was handed stack of forms and told to fill them out and mail them in if I wanted to see a VA Dr.  It appears I filled out my 1st VA Disability Claim forms in 1990 by hand, listed my problems in layman’s terms since I hadn’t seen any Dr’s since my AD SEPS physical, and I mailed it in.  Apparently, I also had a C&P because I got a copy of my C-File and it’s in my file along with the denial I received and more then likely tossed because I was barely sleeping and in a constant state of anxiety & stress.  A female Veteran talked me into to going to the VA in 2010 for MH Counseling.  She also ended up encouraging me and ultimately assisted me with filing a VA Disability Claim later in 2012 that service connected me at 70% for PTSD & Depression due to MST.  The claim was processed pretty quick.  

Now I’m looking at the details of this 1990 Claim in my C-File.  It’s strange because it states in handwritten notes that my Discharge Documents ? are missing, maybe nothing.  My USMC SEPS physical/dental clearly notes I have TMJ.  It’s documented thoroughly in my STR both medical & dental as severe TMJ and bruxism due to stress.  I had zero issues regarding TMJ in my entrance physical or dental exams until about 2 yrs in.  I had 0 issues of any kind on both dental/medical entrance exams.  I was given Motrin to take everyday on AD and they even made me a dental mouth guard. I was sent for psych evaluation as well and sent to specialist for heart tests and EKGs because I was passing out (Military dx’d as Vasovagal syncope) so I guess it was considered stress/anxiety related (EKG in service:  normal sinus rhythm with sinus arrhythmia). Less then a year prior to discharge I was also seen in base medical after I was thrown head first into a cement wall and dx’d with blunt force head trauma to left occipital skull/head.  Dr. gave me more Motrin, bed rest and sent me home.  This was not the sexual assault incident in service, this was another incident after sexual assault.  It was a straight up violent physical assault where my STR notes I was attacked by multiple combatants, picked up and thrown into a wall head first.  The base Dr. actually drew a stick figure type picture in my STR showing angle of head impact to wall.  I only mention it because 1990 decision states in absence of trauma in service..I was basically born defective with TMJ which is a lie. My records are rife (IMO).  I will post 1990 claim+denial decision because I want to know if it was an error or CUE.  The VA can only go by what I wrote in layman’s terms on claim and then C&P, so it’s likely not, but not sure.  I still have TMJ, it’s worsened of course as has dental issues.  

[Emmafrost1111]

Hi Berta, 

Sorry for delay in answering your questions.

1.  “When the VA gave you 70%, were you working then? Or if not, and they knew that, did they send you a TDIU form?”

Yes, I was employed.  Prior to 2012 Claim I worked from home for many years, shift work,  almost entirely night shifts, weekends, outside 9-5 schedule.  If I had to go into work it was mostly off hours.  I had trouble focusing in a normal office environment, the social aspects, conf room meetings...  I could not overcome those issues and found my way into positions that required shift work that can be done off hours/remotely (from home/away) that a majority of people did not want, by volunteering when I saw an opening.  I was laid off in 2013 due to what my former employer’s paperwork said was a RIF.  I found out I was the only person on my team let go at that time. Even though I had assistance with the PTSD MST Claim, the process and what I went through to document my claim per VA standards was a harrowing ordeal.  The process is retraumatizing.  At the same time I was attempting to go back to VA with an open mind and try to address some of the self-destructive habits and unhealthy coping skills I had developed over many years and relied on, but ran into issues obtaining the supportive VA Mental Health care I needed.  Without going into details, at the rate I was going, I was sure to maybe die a slow death, in addition to unintentionally hurting those closest to me like my son who was only 5 in 2012.  I had confided in my boss at my former employers a few times about what I was struggling with (he happened to be a retired former Marine).  I talked to him after the call in which I was laid off and he said I really think you need to take a break from work, take time for yourself, maybe spend time with your son. Nice, but doesn’t pay bills but sure he meant well.

2.  “I assume you have PTSD that warrants the 70%?”  Yes.

Thanks again!

 

[Vync]

15 hours ago, vetquest said:

Looking at your records I would file for new and material evidence and add your service records which highlight your TMJ in service. 

They are cutting you off by claiming that it is a natural progression and therefore not service connected or aggravated.  (38 cfr 3.306 - service aggravation)  I would make note of  (38 CFR 3.304 - service connected, presumption of soundness) the fact that you did not have TMJ or stress before entering and that your problem clearly began in service.  If your stress is that bad can you pinpoint what is causing your mental stress, it might be possible to file for anxiety and the TMJ secondary to anxiety.  Were you ever seen by mental health?

This is good advice.

For pre-existing conditions, check your entrance exam. This typically consists of two parts. The first is the questionnaire where you check if you ever had certain maladies. The second part is the doctor performing the medical examination and determining if you currently have them - this is the part that really matters.

If the doctor did not diagnose you with a condition, then the presumption of soundness (38 CFR 3.304) applies. In effect, that part of your body was considered normal (i.e. 0% disabling).

Having a pre-existing condition is not necessarily a bad thing. If the doctor diagnosed you with a pre-existing condition, the VA is supposed to determine if the level of impact. For example, back then TMJ was rated solely on limited range of motion. If the doctor diagnosed it, they would likely have indicated you had limited opening to XX mm. During the C&P exam, the VA would have determined the current level of disability and then subtract the level at entrance. For example, if your limited opening at entrance was found to be 10% disabling, but is now 20% disabling, you would get 10% (20% - 10% = 10%).

Quote

...the Veteran ... may bring a claim for service-connected aggravation of that disorder.  Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).

 

 

 

 

[Emmafrost1111]

Thank-you Vync and vetquest,

I checked MARCH 1985 MEPS Exam, NOV 1985 Parris Island Exam as well as questionnaires and they are moot or normal.  Even the abnormalities and occlusion section are normal.  The earliest condition presents in service for treatment is July 1988.  NOV 1989 SEPS AD Dental examination notes HX of bruxism and TMJ Pain.

1990 VA Claim states they relied on my records for decision.  I will have to determine how to word this if I proceed using your references.  The only evidence VA actually included in 1990 claim from my SMR is from 1988 and notes increased situational/environmental stress as the aggravator or cause and notes referral for night guard etc.  The 1990 VA decision states in absence of trauma etc. DENIED.  I mean I was treated at base medical for headaches and nausea after being thrown into a cement wall March 1989 (blunt force head trauma left occipital skull) if VA needs or is looking for some kind of obvious well documented trauma or incident in my SMR that would further aggravate condition due to stress and increase bruxism/TMJ. Treatment was ice, bedrest and more Motrin.

While MST incident for 2012 PTSD claim is very well grounded and documented in my SMR and SC me in 2012 as well, I did NOT tell 1990 male C&P examiners about any trauma in service and neither examiner ever asked me.  That shit is soo humiliating as it were to talk about, and I was still in USMC IRR at time of 1990 C&P. The base male medical Dr. that saw me after MST in service examined me invasively in every way medically imaginable for a female with the exam room door wide open to hallway filled with waiting chairs and troops walking by entire time. Total annihilating humiliation to add insult to injury.  Probably why then and to this day I will never ever verbally discuss any kind of details of MST in service with a male Dr.  Not that they are all bad, I just can not bring myself to do it. The TMJ is bad still, but not sure why I’m so obsessed with this 1990 claim because I don’t even think it will be much retro if I succeeded.  I do need dental treatment directly related to accumulated damage it’s done and ‘I believe’ is direct to my service. Just because I believe that it doesn’t mean others or VA have to agree.  I think I just get upset reading decision, and my husband told me I can be like a pit bull sometimes. 

Attached a few of the aforementioned records I located.

Edited July 17, 2019 by Emmafrost1111
Add date SEPS Physical

[Berta]

To VARO                                                                         C file #

This is a Claim of Clear and Unmistakable Errors in(CUE) in your recent ( date of decision) under auspices of 38 USC 5109.

This is a violation§ 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

I have enclosed a copy of your 1990 decision.

I had NO pre existing conditions, prior to service. The VA has no proof of ANY pre existing condition prior to my service. (state the actual statement from the decision here on that) CUE Violation of 38 CFR 4.6

My claim was for a proper service connection of my TMJ (Bruxism) that was due to inservice trauma.

My SMRs, as enclosed , reveal that I had this condition in service.I have highlighted those copies that show evidence of the TMJ.Additional Violation of 38 CFR 4.6.

The denial had a manifested outcome to me because it was not based on evidence in VA’s possession at time of the denial.

I continue to have this ratable disability.

The VA failed to consider probative “elements “ in my SMRs,and I request an equitable decision.

Exhibits:                                                                                                      Respectfully,

1990 VA decision (  Pages)

SMRS Describe briefly each SMR you are enclosing(  pages)

Total the enclosures.

I have also enclosed an addition claim, both are contingent on service connected proper TMJ ratings.

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

Make sure your C file #, name and address are on every enclosure.

You will probably have to file this on  the new claim forms, just like a regular new claim.21-256-others can opine on that and the new claims forms.

Send this to where you are directed on the new forms.

Sign it , copy it for your records, and send it via USPS Priority with a tracking slip.

In the meantime I suggest that you ask the dentist who treats you if they would be willing to prepare an IME. If so, the IME can be brief and tell them that this is a known medical situation ( TMJ) Bruxism) in anyone who has experienced trauma.They can bolster that by referring to your SC disability of PTSD. They also (you can do this for them) can ask VA  to refer to many medical abstracts and articles on the internet that support the Nexus, and enclose those articles with their opinion.

If your TMJ is SCed due to the CUE , it might reveal either “0” SC or a low rating.

I don’t know what the rating should be, but you may not even need the IME- it is just something to think about.

I also suggest, as vetquest did,  that you re-open the claim ( using a separate claim form) as    suggested here.

Send them the same SMR evidence and refer them to the CUE claim,stating it is contingent on a proper service connected award.

If you get a SC rating for that now, that will bolster your CUE, if they handle the re open first.

One of the BVA decisions I posted here for you was awarded to the veteran, who did not have a IME but presented numerous medical abstracts and articles that supported the nexus to his TMJ.

You might not need an IME. He didn't.

Also I suggest you go to our VA Schedule of Ratings here in a separate forum to see what ratings you can expect.

 

[Berta]

Just to add- I often give advice based on my own experiences.

When I filed my Nehmer AO IHD claim,as a survivor of a AO veteran, I also referred the Nehmer RO to 2 CUEs I had pending at the Buffalo RO- one pending since 2003 and one pending since 2004,both based on a 1998 decision ,that also contained one or two addition CUEs -that have been awarded.

I stated to the Nehmer VARO that these CUEs were filed long before my AO IHD death claim and were contingent on a proper resolve of the AO IHD claim and I felt they should be addressed.

The Phila RO awarded them both and then awarded the AO IHD claim.

So I see no problem in filing both claims above that you have  -(a re open and a CUE) separately but at the same time.

 

 

[kanewnut]

12 hours ago, Berta said:

the new claim forms, just like a regular new claim.21-256-

I think Berta meant VA Form 21-526EZ.