Granted for Cervical Spine

[Chief1954]

Greetings
Great News! The VA recently granted my cervical spine claim as "service-connected."  Please take a look at the attached documents and let me know if I have grounds to submit a CUE on this claim because I believed an error was made on the initial claim decision in 1999. 

Best Regards
Chiefhouse00

Cervical Spine Grant Claim 2023.pdf

Cervical Spine Grant Claim 2023.pdf

[broncovet]

While I have not reviewed your file, it sounds like you think you should get an effective date back to 1999, correct?

Since (the most recent decision) is still well within the appeal period, it would appear that filing "cue" would be counter productive to just appealing, and alleging that 1999 should be your effective date.  

 

Cue is more difficult standard, so, why try to jump over the moon, when all you have to do is climb the steps?  

My advice is to file an appeal.  You could try "cue" on the 1999 decision, but I think its better just to file a nod, disputing the effective date.  

What is the 1999 error you allege?  

[Vync]

@broncovet I took a quick look at the PDF he attached. The C&P exam was performed prior to the decision in 2000, but found only reports of pain and some tenderness, but otherwise normal. The VA decision said reasonable doubt did not apply because the preponderance of evidence is unfavorable per 38 CFR 3.155, 3.400. The decision from 2000 does not include the evidence listing.

However, one page contains what appears to be a VA-authored imaging report (not sure if it is x-ray, CAT, or an MRI) from 1999 which found reversed cervical lordosis and degenerative disc disease from C3 to C5. Per 38 CFR 4.71a, as of today, the reversed cervical lordosis could yield a 20% regardless of having normal ROM. Not sure if those imaging results match the rating criteria between 2000 and today.

That could be sufficient to challenge the decision letter noting reasonable doubt did not apply because the preponderance of evidence is unfavorable. However, the decision text makes no mention of the favorable 1999 imaging findings. In my opinion, the unfavorable part is just normal ROM, but the favorable parts are his assertion of pain, observing tenderness, plus findings of the imaging report.

I agree with you that he should approach this from the new and material evidence and request an earlier effective date  and maybe grant a higher rating via a supplemental.

I agree that CUE is probably not the best option right now because he is still well within his 1 year appeal window. However, it could be mentioned in his response as CUE can be called at any time. However, it could be worth noting that VAOPGCPREC 12-95 may not have been correctly applied. Bell v. Derwinski, 2 Vet. App. 611 (1992) requires “…medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.” Based on that, I would assume that even if the VA is in possession of favorable evidence even one day before the decision, the VA would still be responsible for considering it in the decision even if it was not on the decision maker's desk. Additionally, “The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.”

It might be worth requesting a copy of his entire claims folder, just to have that in the system while the VA is working on his NOD. Seeing exactly what is in the C&P exam might be beneficial. 

 

 

[Chief1954]

Greetings

I have requested a copy of my recent 2023 C&P Exam but have attached the 2000 and 2023 VA Decisions and other pertinent documents for your review and recommendation. I located the 1999 X-ray in the VA data but it wasn't in my c-file.  I will request an earlier effective date if that would be the best option. 

Best Regards

Chiefhouse00

 

Cervical Spine Granted 2023_2.pdf

[Chief1954]

Greetings!

I've attached a redacted copy of my 26 Jun 2023 VA Claim for my service connected cervical spine condition which denied for an effective early date.  I have some concerns about this VA investigation, evidence, and final decision of my claim.  This review included the October 28, 1999 Detroit Veterans Affairs Medical Center treatment records and concluded that this end-of-service C&P  X-ray only showed findings of spondylosis or degenerative changes, and it was taken three months after my discharged...it was never included in the C&P exam. Please review and let me know what I can do to get this decision Granted. 

 

Best Regards

Chiefhouse00

Cervical Spine Decision 26 Jun 2023 Redacted.pdf

[pacmanx1]

6 hours ago, Chief1954 said:

Please review and let me know what I can do to get this decision Granted. 

Now that you have won your service-connection, you are most likely going to have to appeal your effective date. There is Clemons V Shinseki a precedential decision that basically states that the VA is supposed to rate the symptoms and not how the disability is labeled or diagnosed. Unfortunately, your appeal may have to go to the BVA and or the CAVC.

You are going to have to prove that your current symptoms are the exact symptoms when you filed your original claim, and the symptoms remained the same. Instead of filing an appeal based on CUE, you may want to argue 38 CFR 3.156 new and pertinent evidence that you feel that the VA did not consider that the evidence was listed but not associated and considered in your decision. The BVA will review your records and make their own decision, and this may help. As stated, if the BVA continues to deny your claim and you feel that your effective date is still incorrect, then you will have to file an appeal to the CAVC and let them decide. Even a low rating of 10 % can add up very quickly.

Also keep in mind that you do not have to hire an attorney until you decide to file an appeal to the CAVC and then, you can get one free of charge due to the EAJA that help veterans fight the VA.  You might want to get familiar with Clemons V Shinseki and 38 CFR 3.156. I know several veterans that lost their CUE claim but won their EED under 38 CFR 3.156.

William N. Clemons v. Eric K. Shinseki, 23 Vet. App. 1 – CourtListener.com

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 

eCFR :: 38 CFR 3.156 -- New evidence.

(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 accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

 

[broncovet]

After further review, I do think there is likely an effective date error.  Still, I like keeping "the benefit of the doubt"(BOD), because that can be a deal maker, so I see no reason to give it up with a CUE, when an appeal with new and relevant evidence may well suffice "without" forfeiting your BOD.  

Here is the problem with CUE, IMHO.  I get that you allege this is the same conditon which was denied in 1999, and now suddenly sc in 2023..that part makes sense.  

However, your effective date is the later of the "facts found" (when the doc said you were disabled) or the date of application. (1999).  And, again not having reviewed your file, you would need to demonstrate your cervical spine "was not only" SC, but SC at the 20 percent or greater criteria level since 1999.

And, that is somewhat refuted by a doctor saying something about you did not complain about the pain (in 1999).  

To refute this doctor statement you would need another doc statement which says that exam report was in error, that, in fact, you did have pain back to 1999 (and otherwise met the criteria for 20 percent).  

A CUE will not let you submit additional evidence, its based purely upon the evidence available at the time of decision.  

However, an appeal (with new evidence) would allow you to submit a doctors opinion that previous exam was inaccurate, you had pain since 1999.  (Of course, this assumes you did have pain since 1999, loss of range of motion, and I donk know that). 

As always, never exaggerate your symptoms or lie to get benefits.  That can backfire, but, if you did have symptoms, and those were inaccurately reported in the exam, you can try to refute an old incorrect exam with a new exam.  

There is a good chance the VA did not consider all of the above.  Specifically, was your exam listed in the evidence section, which was favorable?  This suggests they did consider that evidence.