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If I claimed "Neck Problems" when I retired in 2009, and I was diagnosed with the symptoms of peripheral neuropathy during my C&P exam, should I have been awarded peripheral neuropathy in addition to the cervical spondylosis I was rated for?
Below is the CUE I just submitted along with all the medical records. I have to say, my new VSO, the local county guy, was a big help. He said I might have a problem since I originally claimed "neck" and not "radiculopathy", so I attacked that issue head on in my claim.
The claim is now in eBenefits being reviewed. Hopefully it won't be combined with my other claims, which could take a while although the VA has all the evidence and I have completed all my C&P exams.
MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR
I am requesting a motion to revise the date of a rating decision made by the St. Petersburg, FL VA Reginal Office on February 10, 2017 concerning bilateral peripheral neuropathy of the upper extremities. I am requesting a new date of 1 May 2009. The decision in question is for myself, JustGettingStarted, VA File Number #########.
SPECIFIC ISSUE CHALLENGED: Upon my retirement on 1 May 2009, I was service connected for Cervical spondylosis at 10%; however, I should have also been serviced connected for bilateral upper extremity radiculopathy (peripheral neuropathy) related to the cervical spondylosis.
This motion alleges specific errors of fact or law and why the result would have been different were it not for those errors:
ERROR: The VA recognized symptoms of bilateral radiculopathy in my upper extremities during a peripheral nerve C&P exam conducted on 20 July 2009 but failed to provide service connection or a rating. In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004). In addition, the VA failed to apply the applicable, existing regulations or statue at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).
1. In 2008, when preparing for my retirement physical, I claimed "neck" problems. My miliary doctor clarified "cervical disc herniations with radicular symptoms" on the same document (Attachment 1).
2. In my 2009 C&P exam it is stated “A Bone, Hand, Joint, Peripheral Nerves, and Spine Worksheet should be completed for this patient” (Attachment 2). Both the Peripheral Nerve and Spine worksheets say to see the Bone Worksheet (Attachment 3). On the Bone worksheet, the examiner states “bilateral hand numbness”, “numbness in the dorsum of her forearms”, and “pain radiates into the bilateral arms”. All are symptoms of bilateral upper extremity radiculopathy. It is also noted that I was taking Motrin and Neurontin for the nerve pain (Attachment 2).
3. On 5 Dec 2016, I had a C&P exam for peripheral neuropathy that states “Chronic neck pain radiating to the left arm and right hand numbness since 2000”. (Attachment 4). After this exam, I was service connected for left and right upper extremity radiculopathy and rated 20% bilaterally.
4. Peripheral neuropathy is supported by a long medical history documented in military medical records to include MRIs (Attachment 5). These records were available to the VA during my rating decision in 2009.
In summary, the path to this error is very clear. My medical records from 2000 to present clearly show signs of bilateral upper extremity radiculopathy supported by x-rays and MRIs. I claimed this as a neck problem when I retired in 2009 and it was clarified to include “radiculopathy” by my military doctor. In 2009, the VA ordered exams for Peripheral Nerves, Spine, Hands, and Bones. When rated in 2009, somehow the radiculopathy was overlooked when it became part of my Bone exam and not reported separately on the Peripheral Nerve exam. The symptoms continued after this exam and I had the radiculopathy properly rated in 2016 by a VA examiner who states I had the symptoms since 2000 based on the medical records provided to him. The VA clearly should have provided service connection and a minimum 20% rating for both right and left upper extremities based on all the medical information that was on hand during the 2009 C&P exam.
This request for a new rating date of 1 May 2009 for bilateral upper extremity radiculopathy (peripheral neuropathy) at 20% and meets all qualifications for Clear and Unmistakable Error:
- The VA had all evidence in hand, including military medical records and a C&P exam, when they did not provide for service connection and a rating for peripheral neuropathy in 2009.
- The statutory or regulatory provisions extant at the time were incorrectly applied when the VA failed to determine all potential claims raised by the evidence at hand.
- The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.
- The determination is based on the record and the law that existed at the time of the prior adjudication in question.
I request your favorable consideration in this matter.
JUST GETTING STARTED
17 July 2017
1. Military separation physical
2. 2009 VA C&P exam for Peripheral Nerve and Spine
3. 2009 VA C&P Bone exam
4. Excerpt from 2016 VA C&P exam
5. Military medical records, peripheral neuropathy
I am at a loss of how to speed this process up? This all started in April 2016. I woke up and stretched on a Sunday morning and felt something snap in my neck and upper back. Went to VA ER in Denver and they took an XRay and said degenerative disc disease. I was in incredible pain, couldn't move my neck barely at all up down or side to side. Upper back was killing me as well. They kept giving me muscle relaxants. All my back muscles were spasming. Finally got put in VA Choice program in August/September and talked to a NP. I have nerve pain down both arms and neck. I was driving for a job and had to keep tapering off due to pain, numbness, etc. My primary care requested an MRI for cervical spine. VA Choice took two months to get it through and finally got one on Nov 29th. In the interim I went to the ER again because the pain was overwhelming although the 5 hour round trip was not worth the 20 Percocet they gave me in the end. The ER doctor said they would not do an immediate MRI unless I was losing function of my limbs or bowels and I stated my hands are numb and getting pins and needles as well as severe neck pain. On Nov 29th after the Choice finally approved MRI I was shocked that the radiologist had called my primary care within an hour of me leaving and she immediately called me with the results. She said I needed to be referred to a neurosurgeon. Radiology stated the following:
Indication spinal stenosis pain radiculopathy. C5-6 moderate diffuse hard disc/osteophyte complex moderately encroaching upon thecal sac as well as both neural foramina. C6-7 clinically significant central and right sided acute disc herniation which obliterates the right neural foramen and moderately encroaches upon thecal sac.
I have been waiting to see pain management since early November and am finally getting in on December 28th since it took this long for VA Choice to approve it (1 1/2 months for pain management?). Now I am waiting for VA Choice again for the neurosurgeon appointment since November 29th. You can imagine how much fun this has been with the only pain medication available being Ibuprophen, Aleve, and whiskey. Is anyone else having similar issues with VA Choice and any other advice would be greatly appreciated? I was also sent to OMT and they tried acupuncture as well. From what I was told by OMT physician and reading online is that it is highly likely that I will have permanent nerve damage now since this has gone on for over 8 months now and it will be another 2 months before I will get into neuro? I am not service connected for this but may try since after 10 1/2 years in service and a lot field duty with all the gear weight and helo rides with hard landings etc. Not really thinking about that right now though, just trying to get treatment. I am only 46 and thought I had a little more life left in the bones!
broncovet posted an answer to a question,While the BVA has some discretion here, often they "chop up claims". For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.
I hate that its that way. The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!
My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.
Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
Joey Ross posted an answer to a question,I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and nothing about stressor,
Picked ByJoey Ross,
This is the latest Compensation & Pension (C&P) Clinicians Guide dated 20180719. The only other one I've seen is dated 2002, including the one on this website and the VA website. I got this from my claims agent, who got it from the VA.
VA Compensation & Pension (C&P) Clinicians Guide 2 Final Corrected 20180719.pdf
Tbird posted a question in VA Disability Compensation Benefits Claims Research Forum,You, yes you, are the reason HadIt.com has remained a resource-rich resource. Thousands come each month to read, ask questions, or to feel a sense of community.
Last month June 2020, we over 50k visitors they viewed over 160k pages. Veterans and their advocates, spouses, children, and friends of veterans come looking for answers. Because we have posts dating back 15 years and articles on the home page, they usually can find an answer or at least get pointed in the right direction.
You all made that possible. Thank you.