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! 

 

[Carl the Engineer]

If it was me (many may disagree) I would file a re-open with new evidence.  It has worked for me.

It sounds like they did not have your complete medical records when they rated you.  Its not a cue unless they had the exact records you are referring to related to your original claim.  They can't connect something that is not in your med records when they rate you.

What happens with a re-open is you get service connected with a rating.  Let that sink in for a while and get some compensation coming into your bank account $$$$$. 

After that, then dig into it and see if they may have played loose with the facts regards your original claim.

I see way too many on here trying to go for the whole enchilata, then waiting, and waiting, and waiting, when they should be going for the wins when they present themselves.  You have the slam dunk right now.

Make the claim, go to the exam, get the money $$$$$, 

Hamslice

30, 40, 60, 70, 80, 90 and finally 100 in 12 years.  Working my claim 24/7/365.

 

Edited December 13, 2021 by Hamslice
cause I can

[JKWilliamsSr]

In my opinion the advice 38 CFR 3.156(c) is the best way to go.  It is the same route I am actually taking when it comes to getting the proper effective date.  The most important thing is to get service connection.  I had to deal with the same thing you are dealing with.  I will give your brief breakdown on what I went (am) going through.  I have a number of claims but will only mention the claim that resembles yours.

1.  I filed a foot claim in 2002.  Was denied because per the VA I showed no complaints in service.

2. Reapplied in 2009 was denied again for not submitting new and material evidence.  They stuck with the no complaints in service. 

3.  2018 I get a copy of my C-File and in my service records as clear as day are foot complaints for plantar fasciitis.  There is also a proof via X-rays of having pes planus (flat feet)  entrance physical shows normal feet.  Exit physical shows abnormal (flat feet)

4.  I filed again for my feet but this time I submitted the service records they claimed were not there.  Finally got a C&P exam and was lowballed (10%).   Got tired of it and hired an attorney.  I am currently 50% for my feet.  Currently working on the effective date.

My advice is this.  File a supplemental claim and when you send in the claim send copies of the medical records they claim are not there.  Otherwise it is likely whoever gets your claim will see you did not submit new evidence and rubber stamp the denial.  In my supplemental claim I cited both 38 CFR 3.156(a) and 38 CFR 3.156(c) for the reasons my claim should be reopened.  In theory you should not have to do that but I don't trust the VA to know how to do their job.

Keep in mind supplemental claims cannot be done via E-Benefits.  You will need to fill out the paperwork and either mail it in or fax it.  I personally faxed mine in.

[broncovet]

If you "reopen" the claim based on 38 CFR 3.156 C (new service records) your effective date should be the day after you got out of service, because of these 2 regulations: (Im including them here, no you should not have to cut and paste the regs for the VARO like I did):

Quote

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accord

(Note:  38 CFR 3.156 C. is very different from 38 CFR 3.156 B.  The difference is "whether or not" the missing evidence is SERVICE records, or just evidence after service.  )

The "date entitlement arose" means the date the doc said you were disabled.  And, your effective date will never be earlier than the date the doc said you were disabled.  (People who are not disabled, dont get disability benefits, and "when" you are disabled is indicated by your doctor).  

"If" you dispute the  doctor says you were disabled, you can hire your own doctor.  (That is, get an IMO).  

Here is the regulation which states you get "the day after" your military discharge if you apply within a year after discharge:

 

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

Source: https://www.law.cornell.edu/uscode/text/38/5110

 

 

Edited December 13, 2021 by broncovet

[Brian360]

Thank you for more detail broncovet!

Do you think that citing section 38 CFR 3.156(a) would be wise to do as well (I am definitely citing c. for Service Dept. Records). I am sure it wouldn't hurt?

Also, my VSO is scheduling way out so I am going to fax this Supplemental Claim in tomorrow as I feel this should be pretty cut and dry, after I find a proper fax number that is! I have not submitted any claims myself without their assistance. Do I need to include any other VA Forms besides the 20-0995? I saw a VA Centralized Intake Coversheet online but it is from 2017. I just want to prevent future issues as best I can. I even saw where Supplemental Claims need to be faxed to the original RO that decided the original claim? They sure don't make any of this easy!!

Two more questions:

1. Will this Supplemental Claim take my ITF with it that is currently waiting for me to complete from October?

2. Can I file a separate claim for an increase on another service connected condition while this Supplemental is processing, or will they be combined and then cause delays? 

 

Thank you all so much for your help! If it weren't for this Forum... I probably would have stopped and lived with my first claims results...

[brokensoldier244th]

0995s and regular claims are separate issues. I would just cite 3.156. You don’t need to over think it. If you try to lawyer it too much you might make it worse.

 

 Like claiming OSA for sleep disturbance when you dont have an OSA dx. Sleep disturbances  can be all kinds of things that are usually easier to win on but if you claim OSA in place of sleep disturbance than OSA is what gets rated. Don’t overthink it too much. 

[broncovet]

1.  Im not a fan of ITF.  Just file the claim and send new evidence, with it, and cite "reopen under 38 cfr 3.156 C.  The biggest advantage over 3.156 vs Cue, is that you get to keep the benefit of the doubt with 3.156, and THAT may be a deal maker/breaker.   Use the form Broken cited, because he is way more up on that..the VA has changed forms, and its frankly in chaos.  Therefore, just use the form suggested by Broken.  

Its still possible its returned to you, and you have to refile on another form number.  

Years ago, you could "file for an increase" on a napkin.  You just had to say, "I want to file for an increase on my PTSD".  

Now, you can not use "informal claims", those have been eliminated.  However, if you DID file an informal claim in the past, when it was allowed (probably before Feb. 2019), then an informal claim "still counts" as your first claim date for effective date purposes.  

Finding an old "informal claim for increase" can be HUGE.  

I read my file, and noticed I sent a email to my VSO, explaining, "I was not working", and not able to find a job.  

My VSO forwarded this to VARO, and I found this letter in my file.  

Because of this letter, I was able to get back pay BACK to 2002..as this meets the criteria of an informal claim for increase.  (Case law has pointed out an application for tDIU is an application "for increase"). 

The VA was supposed to "forward to me an formal claim for tdiu", but, the formal claim for tdiu was not required back in 2002.  The idea was, you already filed the formal claim, and you did not need to do that over and over, with each condition claimed.  For this, an "increase" was any benefit request which resulted in an increase in payment..whether or not you asked for your PTSD or whatever to be increased, or if you sought TDIU, or even benefits like a scar.  ANYTHING above the original claim is a claim for increase, so a new formal 21-526 was not required.  

Now, however, you have to file on the applicable form.  A 21-4138 wont suffice, BUT, VA is supposed to mail you the correct form and tell you to refile it using the right form if you used the 21=4138.  

2.  Yes.  File for a seperate claim.  Dont wait, UNLESS, you recently won the lottery and dont need any money.  Every month you delay filing costs you MONEY, because, in most cases, you wont get an effective date earlier than the date filed.  (I posted an exception to this, when you file within a year of exit from service).  It "shouldnt delay your claim, altho almost anything can delay it.  The weather.  Covid.  National records shut down.  Glitches..Lost paperwork..C and P exams..fall through the cracks..the list goes on and on.  

Its also possible it speeds up your claim.  Example: (hypotthetical).  

You are filing for TDIU.  Its stuck in a glitch, because one or more of your present conditions are not yet rated, so maybe you dont meet the initial percent criteria.  

So, you file a new claim for __________(fill in the blank).  Wow.  you have all your Caluza's right there in your file for this one.  Your doc diagnosed you with PTSD, somehow your inservice event was right there in plain sight, and your doc also provided a nexus similar to "The Veterans trauma in Vietnam, where his friends head was blown off, is at least as likely as not due to this Veterans PTSD".  

Now, your PTSD blazes through, you get 70 percent for it as all the evidence is right there, and this makes the percantages work, so you get tdiu also.  

Can you see how filing a new claim "could" speed up the other claims?  Not always, but could.  Depends on circumstances.  Also, if your claim winds up like many, "in la la land" where nothing is happening on it, your new claim may make a rater say, "Gee we are approving his PTSD, but I see he also has a tdiu claim that was in VA cyber nothingness, and this PTSD approval means he instantly is eligible for tdiu.  So, I will get this out of the doldrums, award PTSD and TDIU, and get credit for 2 claims not just one.  (VA employees often get "credit" for their quotas based on the number of issues claimed, that they work)