Do I Have A CUE Claim?

[ljl]

I had no note of any issues with my back upon entrance nor any prior medical records of any kind. I worked as an aircraft structural technician for almost five years. I'm a woman and weighed around 115 lbs at the time. We carried 70 lb tool boxes routinely.

There is a note in my service medical records of my going to the ER or doctor with a complaint of a back injury that mentions that I felt it was caused by carrying a 70 lb tool box. I was told to wear a brace and they probably gave me something for the pain (I don't remember the details but it's in my claims file).

It was the only incident mentioned during service but I've had chronic issues with my back since.

I filed a disability application for the back condition within three months of separation and was denied. I didn't appeal (I was young and dumb), and the claim for that condition was closed. My ratings decision and denial letter stated simply that the condition "was not incurred in service".

Do I have a CUE claim? It goes back to 1990.

Edited January 8, 2022 by ljl
needed to add additional details

[Rivet62]

7 hours ago, pwrslm said:

Spine= bone and nerves, so Orthopedic or Neurologist that deal with spine issues. Look up medical practices that do Spine Surgery. Find one that will provide the etiology, so they will need to see your active duty medical records. Should be on CD, highlighted and noted, so the staff can find the info quickly for the Dr.

Thanks. I will need this to tie in a hip and altered gait (Trendelenberg gait) issue secondary to L5 compression.

[ljl]

9 hours ago, Rivet62 said:

I didn't get an effective date going all the way back 30+ years. My effective date was the date I submitted an Intent to File a VA claim.  There is a veteran who did manage to get his all the way back, and I think his username is Lemuel. He explains the processes he used in a thread here that is pinned by the admin. 

I'll take a look. Thank you. If all else fails, my Hail Mary will be a CUE claim as my issue WAS incurred in service and they noted in a part of the decision "not incurred in service" then wrote a couple of other excuses in other places. It's too convenient for them.

[ljl]

On 1/8/2022 at 10:58 AM, ljl said:

I filed a disability application for the back condition within three months of separation and was denied. I didn't appeal (I was young and dumb), and the claim for that condition was closed. My ratings decision and denial letter stated simply that the condition "was not incurred in service".

I was reading some other parts of the forum and was reminded once again about 38 USC 5110(b)(1) which states: "(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."

That applies to me.

It is an exception that has NO exceptions. 5110(b)(1) does not discuss whether or not that claim is denied but subsequently opened and subsequently service connection. It simply states that when a veteran is service connected, their effective date SHALL be the day after separation. Am I missing something about this being very straightforward should I be service connected for my back condition in the future?

Here's where it gets more complicated, though. 38 cfr 3.400 says:

"(2) Disability compensation -

(i) Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service;"

This statute states "OR when entitlement arose". Does that take precedence over 5110(b)(1)? In that case, I'd have the burden of proving the condition continued through separation and into the future with lay statements and whatever medical records I can still find.

On the issue of a lack of records and the date of entitlement regarding a condition the VA denied on the basis that the issue had resolved:

Citation Nr: 20025708
Decision Date: 04/14/20	Archive Date: 04/14/20

"In this case, despite the lack of actual medical treatment
post-service until 2018, the Veteran’s competent and credible lay 
assertions show that he had symptoms of "the diagnosed bilateral 
shin splints during service and since separation from service 
and that the condition was not resolved until it was again 
medically diagnosed in 2018.  See 
Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements
are competent on in-service and post-service symptoms - dizziness,
loss of balance, hearing trouble, stumble and fall, and tinnitus -
that were later diagnosed as Meniere’s disease). 

(Continued on the next page)
Accordingly, based on the competent and credible lay and medical
evidence on record, and resolving all reasonable doubt in favor
of the Veteran, the Board finds that his bilateral shin splints 
had their onset during active service."

I'm simply considering all possible strategies here.

Edited January 13, 2022 by ljl

[Carl the Engineer]

My advice, and mine only,

I don't know how many of these posts I have read, but they all are simular.  The Veteran trying to go for the whole hog right of the bat.  And then the claim gets denied, appeals, cues, goes for years, etc.

I would (and I do) always get sevice connected first.  You have some medical records, during service, which mentions your back.  If you don't well then you are not going to suceed.  That record and then current and post service medical records mentioning your back pain.  And it wouldn't hurt to go to the VA now and get some physical thearopy (which I did).  That record from the VA physical thearopist got me 2 additons bilateral 10%'s that I didn't even claim.

Put that all together and make a new claim for back pain.

Then, and only then if you get service connected, you can try for an earlier date or other things.

Other things.  Claim secondary conditions caused by your back issues after your get service connected.

I have more secondaries than primaries. 

Hamslice

Work the system.  The system is the VA.  The VA makes it's own rules.  Beat them at their own game.

 

[blahsaysme2u]

THIS! i know vso try say "go for all at once" but really i think this confuses and gives the VA outs and chances for mistakes...the less you give them the better

[Rivet62]

9 hours ago, ljl said:

I'm simply considering all possible strategies here.

When I filed my original claim I expressed the issues in generalized terms. Back pain, altered gait, uneven hips, etc. So, based on my in-service records they gave me the broad brush treatment of service connecting me for the most analogous condition of disc degenerative disease (DDD). My pelvic tilt issue (altered gait) was evident in service, but the RO stated no complaints found about the issue and so compensation was denied. 

Well now my claims look like this: DDD nerve compression at L5 causing Trendelenberg gait. My point is, if I had submitted a fully developed claim at the start then my issues would not have had to be stated so broadly. If it were fully developed to my satisfaction then I could take all my issues with medical records, independent medical opinions, exams, and all the specialists needed to arrive at one thick file and state my issues succinctly. Instead of altered gait, I could show the specialist's diagnosis of Trendelenberg gait as a result of L5 nerve compression.  See what I mean? I got service connected first and that opened me up to a bunch of secondaries. It opened me up for arguing for more and more and more.  The DDD issue that I am service connected for doesn't just stop at L5. It's my whole spine. You want to get your 100% all the way back to service, and you believe you should. So go ahead. Maybe you need an attorney.

I am very new here and learning, but what I've said here is based on my attorney's approach, and from what others have said here. In other words, I understand what my attorney's strategy is based on what others have said here, specific to my claims. I'm learning.

Edited January 13, 2022 by Rivet62