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      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

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    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ 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Cue Or Not To Cue

46 posts in this topic

Posted · Report post

If anyone see's Berta please send her my way. I know she will direct me in the right direction. Well here is the deal. I was medically boarded off of active duty for an accident that was well documented actually I was even transfered not quit cleared and sent to the VA for evaluation and treatment. Within my presumptive period after the medical board/disharge I filed numerous claims all at once for numerous symptoms/injuries. Most was given o% or denied and few were given very low percentages like for my foot/hip/uterus/pelvic etc. That was then back in 98. The thing that bothers me to this day is that I think a mistake was really made on the neck and back claim. Today I have pretty good ratings for my lower/back/sciatica etc and was eventually service connected. My neck progressively has gotten worse and worse and still not service connected. The rating the decision they gave me right after the accident for my neck makes no sense. They didn't even do a MRI back then even though I begged. As a result today my MRI's have shown I have spinal cord injury from the cervical area and all sorts of spurs from previous fractures in the neck area. I have stenosis, Ankylosing spondylitis of the cervical spine, myelopathy of the cervical spine, bulging disk etc. So when I filed for neck and back pain I was trying to call their attention to address my injury to my neck and they denied it. Here is what the rating decision in 98 stated for my neck during the presumptive period (after falling in a 15 foot hole which they had the accident report evidence).

The law provides that a person who submits a claim for VA benefits must submit evidence sufficent to justify a belief that the claim is well grounded. A well grounded claim is plausible claim, one which has merit on its own or is capable of substantiation. Such a claim need not be conclusive, but it must be accompanied by evidence which shows that claimed condition exist and is possibly related to service.

Compensation is payable for a disease or injury which causes a disabling physical or mental limitation. The evidence regarding neck and back pains fails to show a disability for which compensation be be established. It is therefore not a well grounded claim which can be resolved. In order to establish a well grounded claim, it is necessary to provide evidence which demonstrates an actually disabling condition. (this is the part that makes me wonder whose records were they looking at) Services records contain no evidence of an injury to the neck or back and no indication of a chronic disease process relative to neck or back. Xrays of the cervical and lumbusacral spine on Va examination were normal.

Now they did not assist me in addressing my symptons. Today they have changed their tune about my back (lower) and of course I lost the initial dates. I just accepted it. Back then I really didn't know much about claims or the Va and would have have believed if they told me the sky was purple. The thing is through out the years since the initial claim I kept complaining and seeking answers about my cervical neck pain and finally about 2006 they started doing MRI's and other tools to look at it. That's when I started pulling my records and finding all the results of the MRI and progression of my back and neck injury. I didnt even think to pull records until another veteran taught me the process. I just didn't know. I always played by the rules and I thought they did. I am still suffering today. I finally after my doctor told me blantantly that this injury to my neck was a direct result of the accident because of how young I am and how the MRI's look. Today I do recieved treatment for my neck but it was never service connected no matter what my doctor told me. I had to make a decision and so not really understanding about CUE's I thought it may be best to just reopen my claim from 1998 for my neck pain (cervical) and file for all the newly diagnose cervical results from my doc and MRI. After reading so much on Hadit and another Vet site I am wondering If I really did the right thing. Did I just let them off the hook. I have read multiple post on this site about what makes a claim, Browskoski test etc., and I am wondering I made the right move. It appears that I didn't I keep asking should I have Cued or Not. They were well aware of my accident during the first claim and had the accident report so it was well grounded. Sure it may not have been conclusive because there was no official diagnoses made but I was seeking medical answers and care based on my symptoms to which I kept being told maybe I pulled a muscle in my neck. They had the after action report from my commander which showed evidence, they had my medical out paperwork where I checked the box for back and neck pain. Sure the pain then wasn't as bad as it is now but it did cause me pain and spasm that I expressed to them in my claim as neck and back pain. I didn't know then how to write it up any different than that and they didnt bother to C & P all they did was an xray which they claim was normal. Funny thing is couple of years later I continue to complain and the next set of xrays shows spurs and other things in the same area. Obviously, the pain that I was feeling then in my neck and back during the presumptive period was the injury that I am still suffering from and proven by recent MRI's today. I would like to hear various takes on this. Cue or not to Cue?

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Posted · Report post

If they have now SC'd it and rated it I would file a CUE for an EED. In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!

pr

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Posted · Report post

I agree with Philip but would add this to what he stated:

. "In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!"

and documented evidence of the neck injury at a ratable level.

Standing alone, 'neck pain' might not have been specific enough for the VA to consider

"by evidence which shows that claimed condition exist and is possibly related to service."

If this was secondary to the back injury that too had to be spelled out to them.

There is much CUE info here at hadit.

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Posted · Report post

Michellee- can you scan and attach the 1998 decision here ? (cover personal stuff first)

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Posted · Report post

Michellee - I agree w/Berta. Please post the '98' decision, as it'll give us more info to better direct you. Also, what kinda accident was it?

pr

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Posted · Report post

post-7057-0-97633500-1301009123_thumb.jp, post-7057-0-38258200-1301009211_thumb.jp

Thanks guys. Here it is. Phillip my fall was into a 15 ft hole ( that was what I was told and in letter from my commander). Myself and another soldier that I was supervising during the Gulf war we were moving supplies and handling mail. As we were carrying several big boxes there was a hole in the soil that had dirt over it and none of us ever realized it was there. As we walking together with mail bag and boxes as we stepped we just fell through the ground into the hole with the boxes. We were down in the hole for a while with the boxes. It was just so unexpected. The other soldier was unconscious for about 10 min. I'm not sure what I was. Things were hazy after that and lots of confusion. I was told later that some of the boxes had division coins in them. I really don't know why the hole was there or how it got there. Neither did our First Sergeant and Commander. I remember as I was in the hospital the commander stating how pissed off he was at a few people for not checking and ensuring safety. As of the date of my medical board and no one ever took responsibility for it, many claim they had no idea. My commander was the greatest. Older guy from Kansas I will never forget him. He personally, would come up to the hospital. He yelled at doctors when they misdiagnosed me. He brought flowers from the company. He signed my cast. My First Seargeant was very supportive as well and they both wrote persoal letters for me and the other soldier. A lot of my complications didnt show until later or years after the fall. I have multiple injuries left from it and much anxiety with heights, people, sleeping, nightmares of being buried alive, etc. So that's that. Now I am trying to get a more accurate rating for my complications and injuries since I feel I understand the VA much better today to help myself and participate in my medical care. Thanks for all your help. I have trully gotten to where I have from multiple post and guidance from all of you on this site. I wouldn't even be where I am now. My MRI's over the last 4 years have shown much traumatic spinal cord injury, the local VAMC tried to assign me to the local spinal cord clinic and move me from my PCP but I opted to stay. He really works hard to assist me and I have been working with him for a while and is very comfortable with my PCP. Just couldn't entertain the idea of new doc. I have been in wheelchair since 2004 and have moderate foot drop and sciatica to say the few as well as now 1.5 inch shorter lower limb which I didnt have prior to the accident. So I am now playing catch up my neck doesn't turn to the left but maybe 10 degree and to the right 45 degrees. I was diagnose as having myelopathy from the spinal SCI from local VAMC in 2009. I got TDIU in 2008. I just filed a claim for revaluation/reopen of neck claim which I filed as neck pain when it is alot more complicated than that. But that was the only way I knew to readdress and get them to look at what I have been suffering from since 98. I been asking for help for the past 13 years. I didn't know what to claim or knew anything back then nor the correct terminology and was to caught up in trying to manage my health, pain, family. I have had problems with bowel/bladder for years first it started with constant UTI's and now barely have any bladder control left. Wont get into the bowel thing. They use to tell me it was because I had children and caused my bladder weakness. In 2008 I was told it was more than likely from my cord injury. So you see I am swimming backwards. But it is ok. I just want to make sure I get these things accurately rated, evaluated and treated. I am not worried about filing claims as I am TDIU and not under the 20 year rule. Fine with me. I know the risk and not at all worried because I need to make sure these complications from the fall is accurately service connected so if somethings happens to me my spouse and family won't be told well she wasn't service connected for that. I had something to happen once can't remember how it came up at the moment but I did have that thrown in my face by someone is prosthetic when I was going from wheel chair to power chair. So I got to make things right. I have all my MRI's, CT, to back me up now not just an xray. Well I think I need to pull my claim back and file a CUE so tha'ts why I am asking you all for your opinion. Thank you so much Berta.

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I agree with Philip but would add this to what he stated:

. "In my opinion, all you needed to be well grounded was the accident report and neck pain. Go get 'em!!!"

and documented evidence of the neck injury at a ratable level.

Standing alone, 'neck pain' might not have been specific enough for the VA to consider

"by evidence which shows that claimed condition exist and is possibly related to service."

If this was secondary to the back injury that too had to be spelled out to them.

There is much CUE info here at hadit.

Yere I realize that now, sometimes folks are not familiar with the system especially just getting out the service and don't know what to ask the VA to consider outside of stating these are my symptoms, here are my medical records and after action report of the accident. In my case I was a medical transfer to the VA so there was no doubt then about 2 months later I cleared and paper work sign sealed and delivered with medical board blessings. I would like to hold that initial date of when I filed that neck claim but not sure how to do it. I figure it's a CUE but need to do more research on how to go about it. So I am asking alot of questions and reading alot of the CUE info here at hadit. Very informative and that's what pushed me into thinking I may have a chance. Oh I forgot to mention all I have for my back rating today is 20% they wrote it up as Degenerative Disease Lumbar Spine and traumatic athritis, as well as sciatica for each lower limb and 10 % for left hip strain. (whatever that is). I have a total of 80% with these and few other items. I have constant chest pain and irregular heart beats and pain on side of my chest as well. Denied rating in the past and test have shown normal cardiac is what they tell me. My right wrist is 0 % and I can't grasp with my right hand. Hurts real bad to open my right hand completely. My powerchair is left handed structered. It's ok I am ambidextrous. Left arm very heavy and pain shooting constantly, I live on morphine and nerve block shots. I am only 42 years old btw wearing diapers all day long and life changed forever. Still glad to be present it just has not been easy and been a long road to just managing. I hope you get it. If you don't its ok too. Take care. Thx again

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Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?

Such as the medical board findings?

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Did you appeal the older decision at all?

What they seem to be saying is that there was no evidence at time of denial of the back and neck pain-yet they must have found evidence that warranted the subsequent 20% for the back.

A neck injury could be found as secondary to a back injury.

It almost looks to me that -for the neck and back issue at time o this past denial- VA didnt even consider your SMRs at all because there was no current diagnosis?

Did they give any evidence list in the older denial?

Such as the medical board findings?

No evidence list provided. What I scanned is all they ever gave me. I thought then that I had no chance in appealing that no meant no. I didnt no how it all worked and I just sucked it up and kept trying to recieve medical care for it. Later down the line a PCP questioned me of why I was not service connected for any of my back issues then and I tried to explained I had filed and got denied. He encouraged me to refile. So I did. Then I got the rating a few years later for the lumber but didn't ask for the neck. I didn't know your neck could be secondary to you back? hmmmmm. I am on so much medicine I really think it gets the best of me. I just reopened claim in Jan 2011 for my neck and I filed some other new claims with that for my IBS and migraines as secondary. The migraines are listed as secondary to my cervical stenosis, and the IBS secondary to meds I take for my back and neck and host of other things. I am still trying to get them to address my foot drop. I included a request for increase for my LIS Franc Injured left foot which is slightly twisted and dropped which I only got rated at 30% with no special K for the foot drop. Thats not right either. They need to rate me according to the foot drop. I can't walk on that foot at all. It drags. From alot of the CUE information on site that I have been reading made me question how I am going about this neck claim since 1998 and I really believe some things are not being rated correctly or either I am not presenting it correctly. Either way I am trying to straighten it out. No it doesn't seem that they even looked at the accident report at all but then they mention the fall when they were rating other items like my wrist etc on the same sheet. So I was really confused by that. How could I fall 15 foot and you not even consider my neck and back but you consider that record to rate my wrist and my foot. However, later they did come back and rate my Lumbar and give me the DDD and MRI's today show spurs and bulging disk through out from the S1- S4. Then they turned around do EMGs and give me sciatica as well for both legs and remember all this was after they denied me since 98. They made it right with that part but not the neck. I am having a hard time correcting and connecting that part. Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?

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BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. :ohmy: I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.

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She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too.

Michellee,

Secondary conditions need to be correlated to something that is ALREADY SC'd.

Aren't some of these medications RX'd for your ALREADY SC'd back injury ?

If yes, then I would submit something in writing to clarify this ASAP !

JMHO

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Michellee - I can 99.9999999999999% guarantee she only heard that "your IBS is secondary to the meds you take for your neck" and, as such, will deny the IBS and, probably, the migraines. I hope I'm wrong, but I think it's highly unlikely. As for your CUE, I think you have a potential CUE. You need a copy of the accident/after action/incident report and all the medical records, from the accident. Hopefully there's something in there about your neck. There's no doubt a fall like that could cause a neck injury but the problem is/will be convincing the VA.

pr

BTW I got a call this am from VA asking what was my IBS and migraines secondary too. I went back and looked at what I sent them and reveiw what I stated in my letter and it was all right there. Do they really read our letters in whole. Maybe I should change my format. It said in the body of the letter that my migraines were secodary to my diagnoses cervical stenosis I even talked about symptoms and medications for it. She then asked me what was my IBS secondary too and then tried to rephrase what I was saying and said so your stating this IBS is from the medication you take for your neck problems? I said yes and all of the others too. Then she said ok well that is all we needed to know have a good day and hung up. :ohmy: I am still wondering about all of that but glad to see they were already looking at it. Thats great and quick. Well I will have to wait and see can't do much now just getting things prepared. I know I will have make sure that I can capture that date back to 98. I'm trying to make sure my ducks are in a row.

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Is it possible they considered the neck injury in this decision:

"later they did come back and rate my Lumbar and give me the DDD and MRI's today" etc.

or part of this:

"cervical stenosis"

"Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?"

If they made a legal error in that decision by failing to rate the neck disability,or code it properly and the proper rating would have been service connectable at least at 10%,based on the evidence they had at that time-then there is potential CUE.

Does your C file reveal any blue rating sheet at all?

If we saw the actual older decision we could help more but there is plenty of CUE info here.

The denied CUEs that linked here in the CUE forum are as helpful as the awarded ones.

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These CUES might help you determine if you should file CUE and they are good references as to how to word CUE claims;

Carlie found this beauty:

http://www4.va.gov/vetapp10/files1/1004548.txt

Wings found this one:

Here are more from Carlie:

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Michellee,

Secondary conditions need to be correlated to something that is ALREADY SC'd.

Aren't some of these medications RX'd for your ALREADY SC'd back injury ?

If yes, then I would submit something in writing to clarify this ASAP !

JMHO

Calie that is correct I am on 8 different pills every 8 hours. Absolutely and most of them are for my spasm, Lumbar back (SC'd) , Gabapentin for (sciatica SC'd ), depression/anxiety (SC'd 2 different type meds), siezure med (non sc'd), Not to forget the pain meds (Morphine every 8), also get the nerve block shots now once a month for neck.

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Michellee - I can 99.9999999999999% guarantee she only heard that "your IBS is secondary to the meds you take for your neck" and, as such, will deny the IBS and, probably, the migraines. I hope I'm wrong, but I think it's highly unlikely. As for your CUE, I think you have a potential CUE. You need a copy of the accident/after action/incident report and all the medical records, from the accident. Hopefully there's something in there about your neck. There's no doubt a fall like that could cause a neck injury but the problem is/will be convincing the VA.

pr

Philip

I think your right. I did not sleep well and I was awaken by the call and my 19 year old daughter handed me the phone as she was walking out the door for univerisity class and I asked who it was and she said she didn't know it was an unknown caller by the time I got on the phone the lady asked me to verify my active duty dates, and how much my compensation was etc. Meanwhile the room was tilting sideways and I just laid there with the phone in my ear trying to make sense of the conversation. So after the fact I realize I didn't clarify correctly and possible screwed myself. I need not to talk on the phone. I do better if I write cause I got a more time to think as I go. I did resend a copy of the accident report with my reopen formal claim request and there wasn't much done to my neck after the accident except they did put a colar on me for a few days and then said on the next recheck that my neck looked fine and everything checked out that they believed I just pulled a muscle. The recheck was not even at the hospital they sent me back to the TMC for that. No one ever suggested doing an MRI. I did get an xray straight out of the emergency room which aparently they claimed it checked out fine. So that is why the VA eventually there was no record of any trauma to my neck. However it kept hurting like hell. I kept having spasm and all sorts of other problems, then started the migraines, occasional pain mid back and in my shoulder. Even my side of my face(just the left). I was so busy trying to find a cure or a diagnoses because they kept playing me like it was all in my head. It just got progressively worse and I kept going to VAMC about it and tried to get medical care for the complications and I did. I had to fight for even a heating pad for my neck and a cervical pillow told I wasn't SC for the neck. So its been a long and hard road. But I am getting there, things got alot better when I got the PCP I have now and the Pysch Doc ( who specialized in pain) they both pretty much are life savers and very helpful. Things are always clear to me initially, but I do get it after a while. Don't get me wrong I am no idiot. I just need a little longer to process than I did before. I can even do my taxes. It just takes me about 2 weeks and I have check, recheck, and do that several times. So you know what I mean. Well Phillip I think I screwed myself. I am going to call or send and IRIS and try to straighten it out. It will get worked out Gods will.

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Is it possible they considered the neck injury in this decision:

"later they did come back and rate my Lumbar and give me the DDD and MRI's today" etc.

or part of this:

"cervical stenosis"

"Do I have any chance with a CUE or grounds on my end to file a CUE on the neck in your opinion?"

If they made a legal error in that decision by failing to rate the neck disability,or code it properly and the proper rating would have been service connectable at least at 10%,based on the evidence they had at that time-then there is potential CUE.

Does your C file reveal any blue rating sheet at all?

If we saw the actual older decision we could help more but there is plenty of CUE info here.

The denied CUEs that linked here in the CUE forum are as helpful as the awarded ones.

Well I feel the fail to assist me or that part of my claim and I dont have a copy of my C file I just keep copies of everything I send them and what the send me. Like I said the only thing I have about the that particular decision is the blue sheet I scanned on here from 98. (Those were the older decision that I scanned). I just reopened in Ja 2011. So thats all I ever requested on my neck since then. The VAMC diagnosed me about 4 years ago with Cervical stenosis after several C-Spines and CT's, and MRIs, I had 2 MRI's again last year six months apart for neuro to evaluate as a preop and I did refuse surgical intervention (12 years late) and I do have Chord injury. A lot of scar tissue in there (spurs) are impinging on nerve roots as well. This is what I was told and I have limitation of head turning as a result and much more. So they did not consider my neck for rating purposes because I never refiled until now. Then I wondered If I did wrong and should have CUE'd. They did rerate my back because I refiled for that. I hope I am explaining this clearly. Well thanks so much for your help it has really set me on a better direction and made me revaluate how I am presenting this. Thank you Berta. I have ready so many times your post about your cases and your hubby and always found it to be very inspiring. Thanks for sharing as well.

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Remember that failure to assist can't be a CUE. In my case the VA never even gave me appeal rights and they admit it. No CUE on that score. How do you get due process when you are a 21 year old vet who is not even given appeal rights?

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There is such a thing as a VCAA Notice Error, however, the Supreme Court held in Sanders v. Shinseki (2010), that the error must be prejudicial and in sum a "harmful" error where but for the error the outcome would be manifestly different...the burden of proof being upon the veteran to show how the Notice error was harmful.

Relevant to the aforementioned, the Supreme Court held, "A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VA failed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decide what “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) has the “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain just who, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” of harming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19Vet. App. 103, 121 (2005)."

The Court further held, "To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238 , n. 4 (2002) (Souter, J., dissenting)."

Finally, the Court, "recognize[d] that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (Souter, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985)."

In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.

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Then I wondered If I did wrong and should have CUE'd.

Michellee,

Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.

The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.

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I could write book on the VCAA.We were all given enhanced DTA regs in 2000 (the VCAA) and then VA manipulated in some cases-what we got.In 2009 I even asked Congressman Filner to support an amendment I wrote to the VCAA. (I told him by phone the VA had turned this DTA reg into a Scam.The Annual Chairman of the BVA's reports revealed exactly what I meant.)But my idea for amendment didn't get anywhere. :wacko: Things have changed anyhow regarding the VCAA.

The VCAA started out as a positive step but allowed the VA in turn to set up countless time consuming remands over VCAA errors and this is what I believe was the fundamental cause of the backlog.Almost every BVA decision shows the BVA looked over the VCAA letter carefully to see if anything possibly prejudicial had occurred within it.It so,the claim ad to be remanded back to the RO AOJ.

Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

This bears repeating and thanks for stating this:

“In sum, the Supreme Court reversed the Federal Circuit's precedent, and provided a thorough framework in which to navigate VCAA errors which are deemed harmful, and to that extent prejudicial, and in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A.

The very first statement of argument in my I-9 regarding my past AO claim was that the VA had violated the VCAA to my detriment and I stated how and enclosed copy of the VCAA letter I had received. (it was so bad I a angry as I type this and it supports my mantra that many raters cannot read. These VCAA letters have to be carefully read over by the veteran (or widow) and their POA .Most are now and the remands due to VCAA violations at the BVA has sure calmed down.

I asked the BVA for immediate remand due to this VCAA violation causing deficiencies in the SOC,and SSOC I received.The BVA agreed:

.”The Board notes that the claimant has not waived

consideration by the agency of original jurisdiction, and has

in fact stated that, in light of the failure to consider all

the evidence of record, a remand would be required. The

Board agrees. A remand is required to ensure that this

evidence has been fully and fairly considered at the RO

level.”

The VCAA was still violated again by the RO in my case on remand and the deficiencies now involved the AMC and another RO's SOC but when it returned to the BVA, my probative evidence had mitigated the damages and BVA awarded anyhow.

During this period my vet rep, and his boss, and then even the director of my state POA told me I was wrong on the VCAA violation. I filed complaint with the General Counsel against them and am satisfied with the results that had.

As Rakk said here:

“in so doing the Court noted the burden shifts to the appellant to show how the error was harmful and but for the error the outcome would have been manifestly different. So while not a CUE, there are grounds to allege error due to VA's failure to comply with VCAA proviso under 38 U.S.C. §5103A. “

You are 1,000% CORRECT here of course and I am glad the VCAA is in this topic because ,if errors are made in the VCAA letter to the vet's detriment, they can certainly cause a denial that might not be warranted.The appellant has the burden to show the error was harmful.Unless the BVA picks up the error.

The only evidence I needed for that was to send the BVA the VCAA letter I got It was disgraceful.My Soc and SSOC revealed it's prejudicial damage.

In my BVA award it states:

The Veterans Claims Assistance Act of 2000 (VCAA) and

implementing regulations impose obligations on VA to provide

claimants with notice and assistance. 38 U.S.C.A. §§ 5102,

5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§

3.102, 3.156(a), 3.159, 3.326(a) (2008).

The VCAA is not applicable where further assistance would not

aid the appellant in substantiating her claim. Wensch v.

Principi, 15 Vet App 362 (2001); see

38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide

assistance "if no reasonable possibility exists that such

assistance would aid in substantiating the claim"). In view

of the Board's favorable decision in this appeal, further

assistance is unnecessary to aid the appellant in

substantiating her claim.”

You bet it was -I wrote my own little VCAA letter to myself and complied with it. I knew what evidence they needed to award the claim , what the award should be and what the EED was.It took 7 years due to this VCAA violation that caused deficiencies in the SOC, SSOC which my VARO refused to correct and which my POA refused to acknowledge.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.

I am glad the topic of VCAA came up here as we haven't discussed the VCAA in a long time.

While most VCAA letters today are proper and compliant with the VCAA regs, any detrimental error in the VCAA letter could potentially cause a denial and yet a reasonable possibility could exist that such

assistance would aid in substantiating the claim.(but for the prejudicial error)

I asked NVLSP lawyer if the VCAA could be waived for the new AO claims that are obvious awards -ie: the vet was incountry and the vet had documented diagnosis of one o the new AO presumptives but he said VA could never waive the VCAA.

I dont know about anyone else here but I never received VCAA letter on my new IHD claim and they said they have enough to decide it within 30 days depending on a response I have to send in by next week.

I think VA is waiving the VCAA in some new AO claims.

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NVLSP has this undated statement under the VCAA at their web site:

"The VCAA also gives individuals two years from November 9, 2000, to request that VA readjudicate claims denied as not well grounded which became final between July 14, 1999 and November 9, 2000. These claimants are advised to immediately contact their representative (usually a service officer). Requests for readjudication should promptly be filed with the local VA regional office. "

http://www.nvlsp.org/Information/ArticleLibrary/VABenefits/VETBEN-CLAIMSHELP.htm

Unfortunately I guess the VCAA tactic will not work in Michellees case here.

The actual rating sheet (the one they used to send to NSOs and reps -which the veteran didnt get in those days (1998))

in your c file -might reveal a potential legal error as basis for CUE.

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Rakk- I believe Michellee's 1998 claim fell under the "not well grounded" VA denial scenario and the original claim did not require a VCAA letter.I dont know if the claim might have been pursued up to a point that would allow her 1998 claim to fall under the VCAA retroactively.She should look into that.

I should have waived RO consideration from the git go but I was suffering then from an illusion-that someone at my RO would actually read my evidence. They never did.For 7 years.

Berta,

That's the way I'm understanding the denial also - from the get-go her cervical (neck) was denied as NWG.

I too sure wish you had submitted a Waiver Of Regional Office Consideration, (most of the veterans/claimants community

may not have even been very aware of the Waiver at that time) but you continued to have faith in them.

Most of us know, that many of them are still learning how to read and properly apply the evidence : - )

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Michellee,

Please clarify.

You feel you should file a claim for cue on:

On the final, unappealed, rating decision dated XX/XX/XXXX that denied SC for ______________________.

The Reasons and Bases for the denial stated ___________________________________.

You feel the cue is (the reg/s that was broken or not applied) __________________________.

Thank you so much Carlie for your help. Clarification is that I just sent the claim in Jan 2011 to reopen by writing a formal letter and stating such. I believe now what I should have done was file a CUE instead. Hope that's clear. Like I said before they already called me the other day or yesterday whenever I mention it. I was surprise and thankful that they were looking at so quickly. But its not over so I will be using this format. Thx.

Remember either way I need to get it service connected for sure and the fact that "I filed for this a few months after my medical board" it was claimed during the presumptive period. I found this and found this case very interesting and similar.

check this out. http://www.va.gov/ve...es3/0515336.txt

the question in my mind has been do I CUE or simple reopen and lose the original dates. :wacko:

I found these quotes interesting in that case that spelled out to me that I had an inkling of a chance to reopen. Still don't believe they bothered to look at the accident report/evidence. Then years later they did for my lower back my mistake was I didn't reopen for the neck.:mellow:

"I. Pertinent laws and regulations.

To establish service connection for a claimed disability, the

facts, as shown by the evidence, must demonstrate that a

particular disease or injury resulting in current disability

was incurred during active service. See 38 U.S.C.A. §§ 1110,

1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease

is first diagnosed after service, service connection may

nevertheless be established by evidence demonstrating that

the disease was in fact incurred during the veteran's

service, or by evidence that a presumption period applied.

See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).

"Generally, to prove service connection, a claimant must

submit (1) medical evidence of a current disability, (2)

medical evidence, or in certain circumstances lay testimony,

of in-service incurrence or aggravation of an injury or

disease, and (3) medical evidence of a nexus between the

current disability and the in-service disease or injury."

See Pond v. West, 12 Vet. App. 341, 346 (1999); see also

Rose v. West, 11 Vet. App. 169, 171 (1998). Alternatively,

under 38 C.F.R. § 3.303(b), service connection may be awarded

for a "chronic" condition when: (1) a chronic disease

manifests itself and is identified as such in service (or

within the presumption period under 38 C.F.R. § 3.307) and

the veteran presently has the same condition; or (2) a

disease manifests itself during service (or during the

presumptive period), but is not identified until later, and

there is a showing of continuity of related symptomatology

after discharge, and medical evidence relates that

symptomatology to the veteran's present condition. Savage v.

Gober, 10 Vet. App. 488, 495-98 (1997).

In the case of a disease only, service connection also may be

established under section 3.303(b) by evidence of (1) the

existence of a chronic disease in service or of a disease,

eligible for presumptive service connection pursuant to

statute or regulation, during the applicable presumption

period; and (2) present disability from it. Savage, 10 Vet.

App. at 495. Either evidence contemporaneous with service or

the presumption period or evidence that is post service or

post presumption period may suffice. Id.

By a decision in January 1997, the Board denied the veteran's

claim of entitlement to service connection for low and mid-

back conditions. When the Board or the RO has disallowed a

claim, it may not thereafter be reopened unless new and

material evidence is submitted. 38 U.S.C.A. § 5108 (West

2002); 38 C.F.R. § 3.156 (2004).

New and material evidence means evidence not previously

submitted to agency decision makers which bears directly and

substantially upon the specific matter under consideration,

which is neither cumulative nor redundant, and which by

itself or in connection with evidence previously assembled is

so significant that it must be considered in order to fairly

decide the merits of the claim. 38 C.F.R. § 3.156(a) (2004);

see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

There was a significant change in the law during the pendency

of this appeal. On November 9, 2000, the President signed

into law the Veterans Claims Assistance Act of 2000 (VCAA),

38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law

redefined the obligations of VA with respect to the duty to

assist, and imposed on VA certain notification requirements.

The final regulations implementing the VCAA were published on

August 29, 2001, and they apply to most claims for benefits

received by VA on or after November 9, 2000, as well as any

claim not decided as of that date, such as the one in the

present case. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a). "

This case was won by the veteran in the end. Also I plan to request a nexus letter from my PCP on my upcoming appt next week and fax it in as evidence as well. So we will see how this plays out I will keep you all posted.

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Request they review you records from service and the complaints and findings of your condition within the presumptive period in accordance with 38 C.F.R. 3.156(c )(4), in the event they did not have the records at the time of the prior decision, additionally request them to consider the application of 3.303(d); 3.307(b); and 3.309(a) as it pertains to your condition.

This should ensure they look at these regulations in context with your condition, which was noted in service and if documented within the first year, should have became compensable to a degree of ten percent or more within a year of leaving service. If this is not definitively shown by the evidence of record there is no CUE, but a medical opinion from your orthopedist (after a review of all relevant records from service, and current clinical findings) regarding your C-spine injury and later degenerative changes stemming from the in-service injury should serve to have the case reopened and unless clearly rebuttable, should end in a grant for the issue as sought.

This advice if reviewed carefully should comport with the Board's reasoning and the legal standard for a grant of benefits.

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