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]

THANK-YOU Berta and everyone here for taking the time to assist me.  

I noticed something in my C&P Examiners notes.  On DECEMBER 11 1990 the C&P examiner makes what comes off to me as condescending comments in my C&P Rating Report using underlined words (already uploaded C-File here)..: 

Excerpt:

“Patient also claims that she now has an open anterior bite and an “overbite” on left side that were not there before. She states that the military treated her w/ “grinding teeth on lower R” and fabricating her a “soft” night guard, furthermore she complains of still using a night guard made in 1988..” etc

My military Dental SEPS exam was done NOVEMBER 13 1989 where it notes A: or ANALYSIS:  Standing ? HX of bruxism, clenching, TMJ pain

then P: or Plan for Treatment:  NTI

So yes, on Dec 11 1990 (about 1 yr later) I was still using the NTI night guard fabricated and issued by the Military in 1988, but I also continued going to the same military dental every 6 months or more as required where it was checked, my bruxism TMJ issues were reviewed and I was prescribed Motrin for Pain each time all the way up to my NOV 1989 SEPS DENTAL EXAM where the PLAN to treat is noted as NTI. 

In the Rating Decision it states in 1988 SMRs I was referred to dental clinic for repeat evaluation for possible mouth gaurd where the word ‘guard’ is handwritten in an empty underlined space on a fully typed decision for some reason.  The use of the word ‘possible’ almost infers I pulled a custom fabricated dental  MILITARY ISSUED mouth gaurd from my A$$ while I was AD in the Marine Corps!

I attached a NCBI article which states the NTI Clenching Support System wasn’t approved for use in the US by the FDA until 1998.  Guess I was an unwitting guinea pig in the Marine Corps from 1988 to 1990.  The bite guard did actually result in a misalignment in my jaw or bite that I did not have prior to it’s use.  I had no kind of malocclusion before entering active service nor is it noted in my records on entry in March or Nov 1985.  

Thoughts on NTI night guard the VA seems to be attempting to cover up or something that military/DoD used us a test subjects for FDA Research? 

———————————————————————————————————————————————

I had a few more questions about my 1990 C-File IF YOU HAVE TIME TO LOOK AT IT AGAIN. I would like to learn how everything works eventually so someday I can assist other Vets as well.

1.   PG 7-9 of my 1990 C-FILE has some notes I want to decipher if possible:

a.  Bottom right corner handwritten:  

1070

MMRB-15

b.  Bottom left handwritten:

Separation document not on file

c.  Bottom middle (Guess VA isn’t required to include referenced medical records correspondence?):

REPLY CONCERNING MEDICAL RECORDS WILL BE A MATTER OF SEPARATE CORRESPONDENCE. 

 d.  Bottom Right (what was not verified correct since VA checked this box which appears to account for EXCEPTions?):

[ X ] Item 1 and 2 or 10 whichever was the identifier, and 7-9 verified correct, EXCEPT

e. In Item 16 of this form VA appears to be requesting SMRs for CLAIM of left pinky finger only.  Nothing noting my CLAIM for bruxism, clenching, TMJ Pain (LOL that’s how I worded my claim as layman since I’m not a Dr. and can’t diagnose, but did apparently use same verbiage used by Military Dentist in my SEP Dental Exam.  

f. Lastly, bottom left has boxes to check off for what looks like types of service medical and dental records, but it appears nothing is checked?

 

THANKS!!!

 

 

 

 

Edited July 26, 2019 by Emmafrost1111
remove extra spaces

[FormerMember]

I don't see the CUE. §4.6 is not for application in a motion to revise. A mere disagreement with how the evidence was evaluated can never arise to the level of CUE (Russell v. Derwinski 1992).

[Berta]

Emma, I strongly suggest that you read the CUE info in the CUE forum.

Probably most of the CUE advice there has come from me.

Plenty of templates as well.

Many here opine on CUE-

but they need to explain how they won their CUEs to you, I already explained my success in the CUE forum.Ironically ,my pending CUEs have taken a different turn-----The legal error  caused an erroneous audit, and when corrected as in the past three audit issues I had ( they tried to withhold 98,000 + from me ,in the past- but they paid me-faulty audits -so

----if I get the audit corrected, just as in the past , no need for my CUEs to continue. 

The regional counsel called CUE on them when they ignored my letters on one thing, and then the General Counsel ordered them to pay me on another issue.

But This is taking me time, as I have left no stone unturned and can barely spend time here at all,.-

so hopefully the opiners will explain why they believe your CUE would fail-

or just look over the CUE forum and tell me why the CUE I wrote for you a few days ago does not fit into the CUE criteria, based on everything you posted here.

I think 38 CFR 4.6 is the greatest thing since the invention of the weed wacker.

Motions for CUE are only filed at the BVA,on BVA decisions.

I think this was a RO decision.

 

 

 

[Emmafrost1111]

9 hours ago, Berta said:

or just look over the CUE forum and tell me why the CUE I wrote for you a few days ago does not fit into the CUE criteria, based on everything you posted here.

Sorry Berta, it does.  So, I think the PTSD has my brain in overdrive.  Thanks for bringing me back down to planet earth with your kind reply.  I mean you basically wrote out exactly what I need to do/state more or less and I’m still looking at 1990 decision instead of just moving forward and starting it.  

Thanks again for your help!

[Berta]

I will try to add a new article to the CUE forum-so much there that the basics of CUE are hard to find-

I understand how you feel- Carlie ,our former wonderful member, who died, was working on a CUE at the time. I did not understand her CUE at all. And  PTSD compounds everything- I say here from time to time- if you are a VA claimant and dont have PTSD, the claims process will give it to you.

I feel they need to be written as simply as possible.

I realise I have an open CUE issue.

Filed in 2004, never adjudicated. 

The CUE was very brief- filed on a 1998 decision.

It just stated CUE under auspices of 38 USC 5109- and failed to consider their award statement, and then failed under 38 CFR 4.6 , to consider 

the evidence they listed that they based the DIC 1151 award on regarding my husband's malpracticed IHD. I probably sent to them the two Peer review reports, as well.

 

The veterans ( my husband) clearly had IHD and the decision mentioned the numerous malpracticed conditions he had, and also mentioned the FTCA award.The main malpracticed condition, (all had contributed to his death per the award) was heart disease.But the rating sheet that came with the award never mentioned any 1151 rating for his heart disease.

The VARO failed to rate it or even acknowledge  it in the 1998 DIC award, that included their admissions of malpractice on multiple medical issues. I posted it here somewhere.

I filed for AO IHD as soon as those regulations came out. The 47 page decision says they did award the 1151 issues, but it appears they awarded only the SMC CUE of 2004 and the initial  1151 100% rating for a stroke that VA caused him to have.They awarded 6 years for the IHD under Nehmer but the audit shows they never awarded 1151 for 21- or 22 additional months at 100% for the 1151 stroke.They never awarded for the 1151 AO IHD either and applied my evidence ( OGC Prec Op #08-97 to only the 1151 stroke for 6 months.

My VARO director gave me such a ridiculous reason- that I have written to the VA IG, have a White House complaint pending, and I have written to Directors of both VAROs involved, to get this error fixed.

The CUEs I have pending on it would be rendered moot if the VA corrects the audit, as they did in the past for me- as  this VARO made financial audit error 3 times, in the past that totalled 98,000 plus- as I mentioned before.

I got my money and they will rectify this one too. Only via the OGC and the regional counsel, did they actually 

consider the letters I wrote to them on these erroneous audits, all to my detriment.

Today I am preparing a letter to District Council and also am sending a letter to the VA Neuro who declared him 100% P & T due to the stroke.None of my other evidence as to his 100% P & T 1151 stroke has ever been considered by my RO- even though they verified they had it a week before the Director called me to accept something that does not make sense and defies basic VA case law.

She said he was TOTAL for the 27 months prior to his death, but not Permanent. so she wanted me to accept their 6 months at 100% - with medical proof that his residuals of 100% continued for the next 21 months.BS to that. She did state that the residuals did continue to 100% rating until he died. But  somehow tried to get me to believe that his stroke was not permanent. That completely defies 38 CFR 3.340. And reveals that again-as in the past 25 years, this RO refuses to read my evidence.

Sorry to get off the track- my point is that this is a CUE situation, and I filed CUE on it, but a proper audit result will make any CUE moot.

I think VA snookers plenty of vets and their survivors out of retro because they cannot handle the Rating charts well. I hope we have them here. I had to get some older Disability Rating charts from NVLSP.

 

 

 

Edited July 27, 2019 by Berta

[Berta]

I  just posted more info on CUE:

https://community.hadit.com/topic/75441-read-first-if-you-feel-you-have-a-potential-cue-claim/

I