42 Year Old Claim - Cue

[Guest haroldkd]

First, I would like to thank Berta for writing a CUE for me on the old forum.

I did more research and study and believe the following might be another

approach to putting in a claim of CUE for my claim

P;EASE make comments, a person needs all the help and suggestions both negative and positive.

I will keep this as short as possible

In 1961 the doctors wrote on form 21-6796-1 and I will just qoute what is

pertinent.

This veteran filed claim seeking service connection for dermatitus. The evidence of record shows that during service and since service as shown by the current physical examination the veteran has multiple sebaceous cyst,chronic, recurring of the back of the veteran's neck. S ince these cysts are a constitutional and developmental abnormalty they will be disposed of under Code 13 as it is not shown the veteran had dematitis during service.

On this form they show the following

13, Constitution or developmental abnormality - not a disabbility under the law -- MULTIPLE SEBACEOUS CYST ON BACK OF NECK

The date on this rating was 01-3-62

The date on the denial letter 01-5-62

Here is the denial

Your multiple sebacious cys on back of neck are not a disease or injury within the meaning of laws and regulations governing payment of disability compensation and pension. Service connection may not be granted for this.

I was diagnosed 8 times during the serviice. On 2-3-60 Dermatology consult.

folliculitis and dermatitus

2 months after leaving service 12-61 a C&P exam

the diagnosis was multiple sebaceous cysts on the back of the neck chronic and recurring.

They left out the chronic and recurring on the denial, although it is definately part of the diagnosis and should have been so in the denail

under 38 CFR3.303 (B) chronicity and continuity Put into the regulations February 1961, 8 months before this decision.

I believe this is where they did not follow the laws and regulation at the time.That would be CUE ???

38 CFR 34.303 (B)

(:D Chronicity and continuity. with chronic disease shoown as such in service(or within the presumptive period under Sec. 3.307) so as to permit finding of service connection, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmanary disease, first shown as a clearcut clinical entity, at some later date. For the showinf of chronic disease in service there is required a combination of manifestations sufficientto identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merelyisolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, turbuculosis, multiple sclerosis, etc. ), there is no requirement of evidentiary showing of continuity. Continuity ofsymptomatology is required nly where the condition noted duringservice(or the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

2 years I had this disease in the service and still have disease today

They put the words chronic and recurring in the diagnosis. There should be No argument as to chronicity and continuity.

Please add your comments,

Thank you

Harold

[Guest Jim S.]

Harold: You may be going about this wrong: The VA stated:

"Your multiple sebacious cys on back of neck are not a disease or injury within the meaning of laws and regulations governing payment of disability compensation and pension. Service connection may not be granted for this."

You need not have to prove a CUE claim, Since I believe you have now been granted SC for this problem under the correct diagnosis.

Submit a claim or appeal that your sebacious cyst were more likely as not the origin of your SC diagnosis now. Your Dr. should be able to assist you in writing a revised statement that after reviewing your complete medical history, that the diagnosis during service was in error and that the current diagnosis should have been the correct diagnosis or your condition is one and the same.

CUE uses the evidence at the time of the claim you are wanting to prove CUE at.

The existing rules and laws at that time say they cannot award a constitutional or developmental condition. The available evidence at that time showed you had sabacious cysts, not the current diagnosis.

No matter if it is chonic or not, at the time it was not a disability under their rules and laws at that time, so the VA could not have errored

Now with a corrected diagnosis, you should be trying to by your history that they are one and the same and should have been awarded SC at the time of the first claim or time of discharge from the service.

You need not prove CUE, you only need to show continuety from then till now.

The chronic nature of your treatment history should be able to show a connection.

I do believe you are only trying to prove an EED of you claim, you need not have to prove CUE for this. Just connect your original diagnosis with your SC diagnosis or that they were one and the same and you should be able to get an earlier EED.

You may have to also prove it was so bad that you should have been awarded compensation at that time two.

Jim S. B)

[Guest haroldkd]

You must have read my earlier post on the old forum..There was a biopsy taken and I have scleredema. July 22 2005 they gave me a 10 per cent rating but did not go back to 1961 They went back to JULY 22,2004.

and I believe they have regulations that you can not go back and question prior decisions based on wrong diagnosis, and these regulations keep from going back to original claim dates. They did not check the scars rating or I would be at a higher rating, I also have headaches from this. I am going to go to a dermatologist to get some help with the rating and word descriptions. For one it is stated in some places that sebaceous cyst are more often acquired, maybe that would take away the constitutional or developmental abnormalty part. It also is more likely than not that the scleredema came from a streph throat or similar infection.

Check out some of what I have stated.

Also I will study what you have written I do not understand much of this and it will take a while to soak in and I will have to study the regulations for what you are saying I can do.

Thank you very much for getting me started to see other avenues and compare which way to turn. This is not easy because they will use every word and rule and regulation aganist a veteran trying to apply CUE.

I have already checked with my SO and put in several NOD's but I need to stay involved with the case as I have the time and knowledge of my case needed to help the SO with the case. They have many cases to deal with.

[Guest haroldkd]

I had better add this.

On my C&P exam April 30, 2005 the doctor put in the report the following.

I feel that the condition which the patient has now is more likely than not the very same condition which he had in the service. I feel that it is more likely than not that the condition which he had in the service was scleredema.

They wrote this in the present rating decision

An earlier effective date is not in order because the prior denial of the claim became final. On the basis of the evidence of record at the time the decision was made, and the first medical evidence which actually links the current skin condition to the skin condition in the service was recieved in connection with the current clain,. Therefore, 7-22-04 is the earliest possible effective date.

This claim was a reopened claim on new and material evidence, none of which was medical, amd here it reads like they see this as a new claim, when they call it current claim.

[Guest Berta]

I had better add this.

On my C&P exam April 30, 2005 the doctor put in the report the following.

I feel that the condition which the patient has now is more likely than not the very same condition which he had in the service. I feel that it is more likely than not that the condition which he had in the service was scleredema.

They wrote this in the present rating decision

An earlier effective date is not in order because the prior denial of the claim became final. On the basis of the evidence of record at the time the decision was made, and the first medical evidence which actually links the current skin condition to the skin condition in the service was recieved in connection with the current clain,. Therefore, 7-22-04 is the earliest possible effective date.

This claim was  a reopened claim on new and material evidence, none of which was medical, amd here it reads like they see this as a new claim, when they call it current claim.

<{POST_SNAPBACK}>

This is why I suggested that CUE claim- as the VA stated the decision was final-

A re-open on it wont recover the EED- a NOD might get a little more but -in my opinion- the final 1961 decision can only provide an earlier effective date if a CUE is found -

I feel the regulation you stated is a good one to support the argument of CUE-

CUES cannot alter or question the diagnosis-but can question the rating codes and application of regulations like the above one-to draw out the fact that this vet was diagnosed in service with what he has now.

IMOs are expensive-but only an IMO might well establish the proper rating and service nexus here. Then again the C & P doc seemed to do that.

Berta

Edited September 5, 2005 by Berta

[Guest haroldkd]

This is why I suggested that CUE claim- as the VA stated the decision was final-

A re-open on it wont recover the EED- a NOD might get a little more but -in my opinion- the final 1961 decision can only provide an earlier effective date if a CUE is found -

I feel the regulation you stated is a good one to support the argument of CUE-

CUES cannot alter or question the diagnosis-but can question the rating codes and application of regulations like the above one-to draw out the fact that this vet was diagnosed in service with what he has now.

IMOs are expensive-but only an IMO might well establish the proper rating and service nexus here.  Then again the C & P doc seemed to do that.

Berta

<{POST_SNAPBACK}>

i do not know what an IMO is. But MY personal medical doctor is getting me an appointment with a dermatologist at the University of Iowa.

Please suggest what (if possible) the dermatologist could help with. Maybe the following ?

I will have a copy with me of my service medical records for the dermatologist.

1. show a nexus between scleredema now and sebaceous cysts from 1961 ???

2. Look at the medical records from 1961 and if possible to show the sebaceous cyst were not congenital. constitutional or developmental abnormality from the medical information at that time.

3. Check my scar, infection and skin damage and show more than likely than not what was present then (if possible)

4. If sebaceous cysts were chronic and recurring would they have been congenital. ?

Berta can you add to this list or is something there I should not ask.

[Guest Berta]

i do not know what an IMO is. But MY personal medical doctor is getting me an appointment with a dermatologist at the University of Iowa.

Please suggest what (if possible) the dermatologist could help with. Maybe the following ?

I will have a copy with me of my service medical records for the dermatologist.

1. show a nexus between scleredema now and sebaceous cysts from 1961 ???

2. Look at the medical records from 1961 and if possible to show the sebaceous cyst were not congenital. constitutional or developmental abnormality from the medical information at that time.

3. Check my scar, infection and skin damage and show more than likely than not what was present then (if possible)

4. If sebaceous cysts were chronic and recurring would they have been congenital. ?

Berta can you add to this list or is something there I should not ask.

<{POST_SNAPBACK}>

Harold -this is exactly what I meant about IMO- Independent medical opinion.

I would leave off # 4 and stress to the doc that you are establishing the link (nexus) to your service via your SMRs, and that this is in fact a disability -service connectable by your recent decision.

Odd thing Harold- a vet friend of mine has these cysts and he said some other vets who served in Nam like him have mentioned them too-I wonder what really causes them- still- you have the right idea here with your doctor-

he/she should state what their qualifications are or something about their background that makes their opinion better than anything the VA could say.

The VA looks at IMOs like this-with a view in mind to knock down the opinion (if it helps the vet) by saying the doctor has "given no rationale" to support it.

Anything at all can combat that- the doctor's field of expertise, medical background, anything they might have had published on the subject-etc stuff like that-

In the IMO I got the doctor said he could opine on my husband's cerebral damage due to diabetes as he had read thousand's of x rays of brains of diabetics.

Also he used a well know medical Treatise and also mentioned the exact medical evidence he used for his opinion.

We didnt need to prove nexus but still he know what the VA needed.

I think you sure are on the right track here.

Edited September 5, 2005 by Berta