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left shoulder secondary to right shoulder residuals compensation date change


flynsolo2
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Okay, I am hoping someone can help, and that this all makes sense. I recently submitted a claim for left shoulder secondary to right shoulder (residuals). My right shoulder was at 0%. I did a C&P exam (they scheduled it for an outside facility and I am currently trying to get the notes from that exam)-the exam was for both shoulders, and they upped my right shoulder to 20%, deferred my left shoulder, and are requesting another C&P exam. So, my question is this: I received the decision letter and it states that for evidence, (they list numerous things), but one part says, "VAMC treatment records to from October 2006 through September 12,2020. " I know that I have complained of shoulder pains throughout the years, but, when I look on my HealthyeVet reports, it only shows imaging for the left shoulder from 2015, but, again numerous complaints of (both) shoulder pain throughout the years. 

Can i:

A)submit a CUE claim for the right  shoulder (as this has been percentaged for disability) since they used medical records stated on my "evidence" (and so one must assume they used that in determining their decision).

B) if they will not accept a CUE claim for the right shoulder, since there is imaging for the left shoulder from 2015, can I submit a CUE claim for left if it is secondary to the right (right disability they back dated to Sept. 2019, when they received my claim)?...

Here is a copy of the decision letter for the right shoulder....

 

 

 

             VA Form 21-0966, Intent To File A Claim For Compensation and/or Pcnsion, or Survivors Pension and/or DIC, received September 30, 2019

»    VA Form 21-4138, Statemcnt in Support of Claim, received December 5, 2019

»    VAMC (Veterans Affairs Medical Center) Bay Pines, Miscellaneous Disability Benefits Questionnaire (DBQ) - Medical Opinions, dated August 26, 2020 and July 23, 202()

            QTC Disability Benefits Questionnaire, SHOULDER AND ARM CONDITIONS, dated September 12, 2020

             VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits, received December 5, 2019

             VAMC (Veterans Affairs Medical Center) Bay Pines treatment records to include C.W. BILL YOUNG DEPT OF VAMC, from October 25, 2006 through September 12, 2020

             VA Form 27-0820 Report of General Information dated August 25, 2020,

             Private Treatmcnt Records- C.W. BILL YOUNG DEPT OF VAMC, datcd June 29, 2018, rcceivcd December 5, 2019

             Written correspondence received from you, dated and received March 20, 2020

            Section (§) 5103 Notice Response, received March 20, 2020

 

REASONS FOR DECISION

 
 

 

 

The evaluation of right shoulder bicipital tendonitis (previously rated as residuals, right shoulder musculoskeletal strain) is increased to 20 pcrcent disabling effectivc September 30, 2019. (38

CFR 4.1, 38 CFR 3.400)

 

The effective date of this grant is September 30, 2019. The increased evaluation has been established from the day VA rcccived your intent to file (ITF) a claim for compensation. (38 CFR 3.155, 38 CFR 3.400)

 

We have assigned a 20 percent evaluation for your residuals, right shoulder musculoskeletal strain based on:

   Painful motion of the shoulder. (38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since you demonstrate painful motion of the arm at the shoulder, the minimum compcnsablc evaluation of 20 percent is assigned)

 

Additional symptom(s) include:

    None of the clavicle or scapula

 

The provisions of 38 CFR §4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and applied under 38 CFR §4.59.

 

A higher evaluation of 30 percent is not warranted for limitation of motion of the arm unless the

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  • Moderator

Flynsolo2 Sounds like you have some things cooking, but they're not cooked yet. You don't want to submit a CUE unless you want to kill your claim. You said that they listed (some) evidence 10/06 thru 9/20. But you didn't see some additional evidence called out. OK. If it is deferred, and you are getting an additional C&P, that's probably because they were missing enough evidence to rule on your shoulder. Go to the new C&P and wait theresults. Veterans should be aware that a CUE is a very powerful tool, but it isn't necessarily the first one you should grab out of the tool box. 

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GBArmy is right-

 You need to wait for the deferred decision on and the C & P exam for the left shoulder.

I assume you filed for both shoulders on the same application,dated 

you stated:

"(they list numerous things), but one part says, "VAMC treatment records to from October 2006 through September 12,2020. " I know that I have complained of shoulder pains throughout the years, but, when I look on my HealthyeVet reports, it only shows imaging for the left shoulder from 2015, but, again numerous complaints of (both) shoulder pain throughout the years. "

From what I see here your EED will be the date you filed the Intent to file, for the left shoulder-

and I assume it will be the same EED as the right shoulder.

"The effective date of this grant is September 30, 2019. The increased evaluation has been established from the day VA rcccived your intent to file (ITF) a claim for compensation. (38 CFR 3.155, 38 CFR 3.400)"

 

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Thank you!! I will wait for the C&P exam and see what they say. I did submit both claims at once, and did a C&P exam before for both, so I just don't understand why they upped my right shoulder and deferred my left shoulder for another c&P exam....thank you for the help!!

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  • HadIt.com Elder

I am service connected secondary for my right shoulder (20%) to my service connected left shoulder (10%).

The date for your secondary claim is the date you make the secondary claim, NOT, the date of your original service connected claim.  Or anywhere in-between.

Just because you find it in a medical record, does not mean compensation starts from there.  Compensation starts from the time of the claim.  Even, especially for claims that were previously denied.  I find things in my old medical records that I never claimed, and I do claim them and and when I win I appreciated the compensation.  The VA is NOT going to go looking for anything in your record that could benefit you, that you didn't claim.  It don't work that way.

And as stated above, you should wait for your deferred decision before you do anything.  You never know, it could be positive news.

Just my opinion,

Hamslice

 

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I agree with Ham

although the secondary condition becomes part of the original condition that caused it or related to it...,  but as Ham mention the date of the secondary condition is the date you filed for it.

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Thank you all so much! This is all new to me, so navigating my way through. I will wait for the secondary claim to come through on my left shoulder and fingers crossed it all goes well!!!

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  • Moderator

To be a little more clear

examples

say you filed for it on a MONDAY  10/5/2020 BUT USE THE US POSTAL SERVICE and VA Received it on Wed 10-7-20,  then 10-07/2020 would be the date they use.

If you file it electronically the date you filed it would be the same date the VA Receives it  if you file it in the am part of the day and you should get the confirmation that the VA Received it.

Although the effective date would be on the application.

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