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Is this a Clear and Unmistakable Error (CUE) ?

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dwbell99

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FACT 1: Veteran's left ankle is 10% service connected.

FACT 2: Submitted claim: It is this provider's medical opinion (My Doc / IMO) that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not  50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

FACT 3: The DECISION of the Rating Decision: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied. REASON: We have denied your claim for service connection for degenerative disc disease, lumbar spine (claimed as back) since this condition neither occurred in not was caused by service.

FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).

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Claim History
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1. Submitted claim 7/19/2016: Service Connected back.

2. Rating Decision 11/29/2016: Service Connected back denied.

3. Submitted corrected claim 11/18/2017: Back is more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

4. VA received claim 11/18/2017: Existing appeal for back so (reopen) appeal.

5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle.

Edited by dwbell99
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Perhaps Berta will chime in (our CUE expert).  However, until/unless she does, I suggest you file a NOD and make sure it ARRIVES at VARO prior to Nov. 21,2019.  

If you file a nod vs file a cue, you retain the benefit of the doubt, you dont have to prove its undebatable, and do not have to try to prove the error was outcome determinative.  

I "smell" a 38 cfr 3.156 issue.  You indicated you had a nexus, and I will assume you had a current diagnosis.  This is 2/3 Caluza elements, but 2/out of three, contrary to the song by Meatloaf, is failing.  You have to have 3/3 Caluza elements for SC.  

It "might" be that you lack an "in service event" documented, and it "could" be because you were missing all/some portion of your service records which could have documented the event in service that caused your back issue.  

A nexus is irrelevant, if you dont have an "in service event" which caused or aggravated your back/sciata issue.  

If you timely file a NOD, you can always file a cue later, there is no time limit on cue but a strict time limit on filing NOD's.  

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Well, then its a fight between your docs credentials against the VA's C&P examiner, who can be a doctor, physicians assistant, nurse, CNA or janitor, just depends on the day.

Just because your doctor says something, the VA does not have to accept it. 

Will your IMO go to bat for you?, I'm sure he has had this situation before.

So, I don't think its a CUE, but I don't know much other than my stuff,  hopefully, others will opine.

You need to go the next step after a denied appeal, which is way out of my range,

FWIW,

Hamslice

 

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4 hours ago, broncovet said:

Perhaps Berta will chime in (our CUE expert).  However, until/unless she does, I suggest you file a NOD and make sure it ARRIVES at VARO prior to Nov. 21,2019.  

If you file a nod vs file a cue, you retain the benefit of the doubt, you dont have to prove its undebatable, and do not have to try to prove the error was outcome determinative.  

I "smell" a 38 cfr 3.156 issue.  You indicated you had a nexus, and I will assume you had a current diagnosis.  This is 2/3 Caluza elements, but 2/out of three, contrary to the song by Meatloaf, is failing.  You have to have 3/3 Caluza elements for SC.  

It "might" be that you lack an "in service event" documented, and it "could" be because you were missing all/some portion of your service records which could have documented the event in service that caused your back issue.  

A nexus is irrelevant, if you dont have an "in service event" which caused or aggravated your back/sciata issue.  

If you timely file a NOD, you can always file a cue later, there is no time limit on cue but a strict time limit on filing NOD's.  

I have (in service event) service connected ankle, (current diagnosis) back condition, and (nexus) IMO.

I do plan to file before 11/21/2019 to be within the year. 

 

Also, the VA examiner's medical clinical specialty is Pediatric Emergency Medicine. 

Edited by dwbell99
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I have also requested a second  Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability) and to attest to the damage in my back. Additionally have asked my back surgeon for an IMO for back damage and employability statement.

Planning to go the Supplemental Claim route so I can add new and relevant.

 

Edited by dwbell99
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