I believe I have a CUE (or multiple)?

[Brian360]

 

**This question may be posted in the wrong section, I apologize if so.**

I believe I have a CUE (or multiple) and I need input if I am wrong or if there is another route I need to take?

In my first year out of service claim (2016) I claimed "Shoulder Condition" for both of my shoulders separately and "Numbness & Tingling" for both hands.

I have recently found copies of my STRs and I found where I complained of shoulder pain four times (including in my exit exam, which also included a complaint of numbness and tingling) and I also found where in 2012 it was written in a periodic health assessment that "Pt has c/c of (L) shoulder pain x 1 year, Pt refer to sick call". So, from 2012 - 2015 I complained of shoulder pain four times in service and then on exit I also complained of tingling and numbness in my hands. Nothing was done as far as treatment goes in service but I complained multiple times.

 

I was denied my VA claims for all four conditions in 2016 with the exact same language for each claim as follows:

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. We did not find a link between your medical condition and military service. The evidence does not show an event, disease or injury in service. We received your medical evidence which discusses the symptoms of your medical condition.

Service connection for left shoulder condition is denied since this condition neither occurred in nor was caused by service.

Service connection for left shoulder condition is denied because the medical evidence or record fails to show that this disability has been clinically diagnosed.

 

Is this considered a CUE or what route should I take now that it is five plus years later? It says on the first page of the decision letter that they had my STRs as evidence so they should have seen these conditions complained of, right? But it states in their decision letter for all four conditions that my STRs do not contain complaints for these conditions? So, it appears that they did not see my complaints?

My shoulders are much worse now (just had x-rays taken and arthritis was noted in both shoulders at the VA) and the numbness and tingling is still throughout my arms and hands. 

Thanks for any input or suggestions! 

 

[brokensoldier244th]

You can file an 20-0995 and point that out, along with the onset and specifically refer to that part of your service record so it doesn’t have to be dug through again. It’s *possible* that the HAIMS strs and personnel files that were sent from the service wasn’t extant, it wouldn’tn be the first time I’ve re-downloaded strs or OMPFs and find stuff that wasn’t in them the first time around when they were sent the first time (not from the vet, the automatic transmission that happens when you out process). CUE has to allege not only that you disagree but exactly why, with specifics. 

 

 Here’s some info on CUE. Just ignore the attorney part- I’m not promoting them, but the info breaks it down pretty good. 
 

https://www.veteransdisabilityinfo.com/clear-and-unmistakable-error-claims.php

[broncovet]

Short answer:  We dont know if there was CUE until/unless we reviewed your file, however, its likely there is "something better", 38 CFR 3.156 C.  

You posted:

Quote

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. We did not find a link between your medical condition and military service. The evidence does not show an event, disease or injury in service.

The bold portion, above, is the problem.  To get service connection, you need the Caluza elements, and this indicates 2/3 were lacking (nexus or link, and in service event or aggravation).  

My next question:  Did you apply "within a year of exit from service"?  Your post is not clear that you applied within a year.  

"If" you apply within a year, you are given presumptives.  In other words, you had a physical when you got in, you had another when you got out, and had syptoms within a year, so what ever you didnt have before and do have now, should be sc, "But only" if you apply within a year.  

Now, the "fix".  Apply to reopen due to new service records, 38 CFR 3.156c.  Then send in the applicable service records demonstrating an in service event, and in service treatment.  

For "whatever reason" apparently the VARO did not have your complete service record, and the easiest fix (far easier than CUE) is to reopen and send that info to them, assuming it exists and you have a copy or can obtain one.  

Dont worry about Cue, at least for now.  Just win your benefits, you should get the same effective date with 3.156 C as you did with a CUE, except the 3.156c allows you to "keep" the beneift of the doubt, where Cue does not.  Its just easier.  

Now, the good news:  "If" you applied within a year of service, your effective date should be the day after exit from service.  This could mean significant retro, about 5 plus years of back pay.  

 

 

[Brian360]

Thank you both for your responses.

I did file this original claim within eight months of separation and it was decided just prior to the one year out mark. 

So, instead of a CUE it sounds like a Supplemental Claim is the best route to take to reopen these denials (for now) correct? 

Do you recommend I reference the 38 CFR 3.156 (c) in my statement in support of letter that I will attach? My VSO always frowns upon any "telling" of the VA how to do their job...

I had a terrible C&P exam for my first year out of service claims and I can almost guarantee my ROM test then would not warrant a rating of more than 0% for my shoulders, if I did finally receive service connection, because he had me push through the pain for all ROM tests and I didn't know any better at the time. Would they order a new/current C&P do you think? Maybe I could get a 10% pain retro being that is what I always described it as in service (painful shoulders with numbness and tingling)? Actually, I need to check when 10% for "pain" started being allowed, if it was in 2016 or not.

Lastly, it says in the original denials that "Service connection is denied because the medical evidence or record fails to show that this disability has been clinically diagnosed". But being my first year out of service did I need a diagnosis on top of the in-service complaints? I do have current x-rays showing degenerative changes now.

[brokensoldier244th]

Don't worry about citing regulations- just make sure you are citing relevant ones. I get letter header from legal eagles both legit and somewhat less so all the time sent to vet files that are 3/4 Pub Med/strings of legal text that have little bearing on the file. Its meant to intimidate and drown the VSR (me) and the rater in crap. Some of the 'paid-we help veterans' type places are like this. 

Honestly, its more likely to make someone MISS something because you get stuck looking up all the stuff the lawyer cited and filtering out a lot of the pub med/web md stuff. Unless you were a part of a medical study specifically those are only anecdotal evidence- you have to get your doctor to cite the same study and explain why your symptoms are similar and relevant to those of the study participants because studies are designed and defined around pretty specific criteria for each one, and that definition and criteria has to be about the control and study group specifically to be a good study (confused yet? LOL, I had to do a few of these in miniature for my last degree, though not medical, they same rules apply). 

Bronc, however, gave you the right one up above, so you are good there. Did you appeal immediately after your first decision? If so GREAT! Your original effective date would be in play- if not, your effective date will be from whenever you file the new one. Advice #2 - a supplemental requires either New or Relevant evidence. I get some 0995's from veterans that are the equivalent of "i disagree..." and then....nothing. They don't tell me what to look for, what's new, what they think was missed, etc, and then I have to try to needle in a haystack the whole thing again.  If a claim is filed as an 0995 and has no new or at least relevant evidence its a denial by definition.  The rating decision list of what was reviewed is your friend, here. If its not on the list its "new", if it is on the list and you can point out stuff that was obviously missed its "relevant". At least have an idea (you do) of what you think was missed and cite that.

You don't even have to send in the whole mess again, but if you have the relevant pages of what you are citing by all means send it in- and underline or highlight the good parts. Heck, type up a short coverpage of what you are contending and where-ish/when-ish/what-ish it is in your records and Ill love you forever. I WANT my job to be easy. I love finding the needle, don't get me wrong, but its exhausting to do that much digging for a thread when I can 'feel' that its in there somewhere, when Id rather have a basic, well defined idea of what I'm looking for. I don't need a term paper and you don't need to be an expert. Just give me/a vsr enough that we're not going on a complete spelunking expedition. Your claim will get done faster and you'll probably be rated better for it. 

 

 

[Brian360]

Thanks Brokensoldier244th!

So, long story short, just to rehash and get it right as to not waste anyone's time going forward. In my original claim I filed on my painful shoulders - within one year of getting out - both were denied due to the language above, I did NOT appeal within one year after the VA's decision because I just recently found the copies of my STR's showing I DID complain FOUR separate times in service of painful shoulders (even on my exit exam). So, now, it is basically six years later and I want the VA to see that I actually did complain of my painful shoulders numerous times (because their denial says they did NOT see complaints in service). 

I am not sure what form to use (to file now) or how to spell this out that I actually did complain in service numerous times and here is the proof. I will upload the STRs I just recently found to help them see with dates of complaints in service. 

Main question, should I file to reopen as a Supplemental Claim with new and material evidence (I am assuming they didn't see, or have these four STRs)? And if approved, and then finally service connected, will I lose the EED with filing as a Supplemental? I don't want to lose the EED if I don't have to?

Sorry if I have been confusing! Your input is greatly appreciated!

Edited December 12, 2021 by Brian360
Typo

[brokensoldier244th]

Usually a supplemental is ED'd from the date of its filing BUT you have evidence that shows earlier onset and that you complained earlier (the denial filing, and the Sep exm). 3.156 addresses the potentiality of an earlier effective date already based on records not received. It also makes note that sometimes VA receives records after the first request for records from the service(s) either that were classified (I worked on a claim from a guy that was legit in Seal Team 7 the other day where I was the 2nd go around with new records received- that was an eye opener) or just weren't received. Like I mentioned in an earlier post(s) sometimes VA screws up because what we got when we requested the first time didn't have the thing that the veteran eventually wins on. Thats certainly not meant to be taken as a blanket statement absolving the VA. I have been a veteran for much longer than I have worked at VA- I got out in 2002 and I didn't start as a VSR until 2020. 

Incidentally for you watchers at home, I have applied for an internal ratings position that rarely but sometimes becomes available as low as GS 9-10. We'll see what happens with that.  Getting back to our regularly scheduled program-

I see a lot of records from prior to the mid 2000s or so where the initial files sent to VA with your discharge have like, 10 pgs of STRs or only your enlistment contract and initial MEPS documents and maybe a 214. Its really frustrating to me because 1. I have to reinvent the wheel and re-request them, and 2. a lot of the time veterans were rated or have ratings already and I can't figure out how since there are *wait for it....* no strs or personnel files.  WTF?