VA says they made a CUE in awarding me shin splints & knee disability

[SemperFiGeek]

I apologize for the long post but I need help as the VA has made a complete disaster of my claim.

My original decision from predischarge exam I was rated 10% for shin splints of the right and left leg along with 10% for each of STATUS POST LEFT KNEE MENISCECTOMY WITH DEBRIDEMENT and PATELLOFEMORAL SYNDROME OF THE RIGHT KNEE. The shin splints were rated analogously as 5262-5022 but MY condition never actually included a knee disability any where in my records as was noted in the rating decision here from October 2004 here:

We have granted service connection· for your bilateral shin splints.  The available service medical records submitted for review show you were initially  treated on August 13, 1999 for bilateral shin pain after running. You were diagnosed with shin splints, provided with Naprosyn for discomfort, and placed on thirty days limited duty. Your records also show six additional, periodic medical reports through September 2003 to obtain medication for shin  pain, and placement on another twenty-one days limited duty. You experience .symptoms of constant tightness in the shin muscles that easily become inflamed after long periods of standing, running, walking, and climbing up stairs.  Treatment was limited duty, Motrin, and ice. Functional impairment is an inability to run or stand for long periods of time however you denied any time lost from work due to this condition. We have assigned a separate 10 percent disability evaluation for shin splints of each leg. Physical examination revealed tenderness to palpation of the anterior tibia bilaterally of both tibia/fibula performed on the day of examination were considered normal bilaterally. A review of all findings which includes treatment  in service, VA examination, and your subjective complaint of  bilateral shin pain falls in-between the criteria  for a 0 percent .evaluation and a 10 percent evaluation, Where  there is a question which of two evaluations shall be applied, the higher evaluation will be assigned if  disability picture more nearly approximates the criteria required for that rating. wise, the lower rating will be assigned. Resolving all benefit of the doubt in your the 10 percent evaluation is assigned. A higher evaluation of 20 percent is not warranted unless evidence demonstrates leg flexion which is limited to 30 degrees. Since this condition is not specifically shown in the VA regulations, it has been rated on a similar condition in which the anatomical location and symptoms are closely rated. Additionally  disabilities such as limitation of motion, restriction of activity, and additional functional impairment caused by pain have also been considered; even though they not have been specifically noted during VA examination.

 

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The VA Sent a CUE with my MARCH 2015 trying to lower my rating for spin splints from my predischarge exam with my 03/03/2015 rating decision that says:

"I hereby certify that the claims record of this veteran has been reviewed and that the following
clear and unmistakable error has been identified: The rating decision of October 18, 2004
incorrectly provided separate compensable evaluations of 10 percent each for left leg shin splints
and right leg shin splints along with compensable evaluations for the left and right knees.
However, a more complete review of the evidence shows that the separate compensable
evaluations for bilateral shin splints was a clear and unmistakable error due to pyramiding. This
Rating Decision constitutes a proposal to reduce the evaluations of shin splints to 0 percent each,
which results in a reduction of the overall evaluation to 70%. (38 CFR 4.00 (k, 3.105, 4.14, 4.71a
(5262))"

The problem is my shin splints are strictly a leg condition that were rated analogously , as was initially found and have never been tied to my knees or ankles anywhere in my SMRs.  I just got my C-file and was treated numerous times for for shin pain, did 51 days limited duty because of it  and had no treatment for the knee condition and shin splints at the same time in service. Shin splints it is still listed as an active condition in my VA medical records along with the knee conditions as of May 2015 and no where in my VA records is it tied to a knee disability. My wife had a bad interaction with a butthole rater at a local event the VBA did two months before this was sent about the reason my claim for increase in my  knee conditions so we protested the condition based on retaliation to the Veteran Service Manger who remembered us from the event and agreed it was suspect and ordered an administrative review. We got a rating decision stating the following two weeks later:

"Rating decision dated March 3, 2015 proposed to reduce your right and left knee condition rated
as shin splints from 10 percent to 0 percent. Although that decision was a correct decision based
on the diagnostic code that was assigned and the medical evidence of record for that diagnostic
code. A review of your case was requested and what we found was the medical evidence from
the VAMC in Fayetteville and from your private provider shows you have bilateral limitation in
flexion and extension at a compensable rate of 10 percent. Therefore, we have changed the code
sheet to reflect this decision and continued your overall evaluation of 80 percent."

They changed the code from 5262-5022 which was analogous so never actually included a knee disability to 5262 for limitation of extension of the knee(I never claimed that). The problem the rating decision I received on 12/10/15 when I put in an increase for shin splints which is lower leg pain they examined me for the limitation of extension of knee and are now proposing to lower it again because i didn't have a limitation of extension of knee and the C&P exam said I have no history of shin splints. I'm trying to figure out the best way to straighten this mess out.  Any advice?

Edited December 31, 2015 by SemperFiGeek

[FormerMember]

Hey Berta. Five year substantially protected ratings? Or how about 38 CFR 20.1403. VA can never show up 12 years later and claim they misinterpreted the evidence or even hope to prove it would have manifestly have changed the outcome in 2003.

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed—

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error—

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

 

 

[SemperFiGeek]

thank you for the references! its pretty ridiculous.

[broncovet]

I agree with Alex and he is spot on.  A disability percentage rating is virtually always a "judgement call" by the decision maker and not CUE.  "Leg flexion limited to 30 degrees", along with "shin pain" are judgement calls.  Deluca says that pain must be considered.  I could also bend my knee 30 degrees if put in a sound proof room with 4 Marines who did that to torture me.  That would not mean I could bend my legs 30 degrees, as that would be a Deluca violation.  Deluca suggests the question is not how far can you bend your knees, but instead  "How far can you bend your knee WITHOUT PAIN?"    Do you have "shin pain" when you bend your leg 30 degrees?  The first decision maker suggested you did, the second decision maker had a difference of opinion.  Difference of opinion can not be CUE.  

We dont have a precise measuring system for "degree of pain", that is self reported by the Veteran, AND can vary over time, with episodic improments that do not demonstrate "actual improvement" "under ordinary conditions of life" (working).   VA benefits are not to be taken away because the Veteran is able to rest his knee by not working or doing things which inflame the knee.  Instead, it is to compensate him to the degree that the "loss of use" of his knees results in an "average income impairment".    To reduce you they have to demonstrate "acutal improvement" under ordinary conditions of life.  

 3.105 Revision of decisions.

The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.

(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under § 3.2600 without being recommended to Central Office.

(c) Character of discharge. A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions of paragraph (d) of this section.

(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

(Authority: 38 U.S.C. 5112(b)(6))

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

 

Also, 

9.16 REDUCTIONS UNDER ADMINISTRATIVE ERROR (38 CFR 3.500(B)(2))

Finally, dont overlook this, too:

38 CFR 3.344 - Stabilization of disability evaluations.

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• Authorities (U.S. Code)
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§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

 

 

a. Administrative Decision Required. Prepare a proposed administrative decision to reduce or terminate benefits as a result of an erroneous award based solely on administrative error or error in judgment (38 CFR 3.500(b)(2)). Give the beneficiary 60 days to submit evidence to show why the reduction should not be made. Do not include language about minimizing an overpayment since an overpayment will not be created.

 

 

 

(1) A coach may approve the proposed decision if the amount of the erroneous payment is less than $2000. If greater than $2000, the VSCM must approve the decision. Use the amount of the erroneous payment as of DLP at the time of approval of the proposed decision to determine who must approve the proposal.

 

 

 

(2) If a coach approves the proposed decision, he/she can approve the final decision even though the amount of the erroneous payment may then be equal to or greater than $2000.

 

 

 

b. No Evidence Provided and No Hearing Requested. If new evidence is not received within the 60-day due process period and VA does not receive a request for a hearing from the beneficiary within 30 days of the date of notice of the proposed reduction, reduce benefits the last day of the month in which the 60-day period expires.

 

 

 

(1) Another administrative decision is not required. A memorandum for file stating that no evidence was submitted and that the proposed decision is final will suffice. It must be signed by either a coach or the VSCM.

 

 

 

(2) File the proposed decision and a copy of the memo in the VSCM's office per subparagraph 11.31(b)(1).

 

 

 

c. Evidence Provided or Hearing Requested. If the beneficiary provides new evidence or VA receives a request for a hearing from the beneficiary within 30 days of the date of notice of the proposed reduction, continue benefits at the same rate pending a final decision. Reduce or terminate benefits effective the last day of the month of the FINAL decision or the end of the 60-day period, whichever is later. If new evidence is submitted, another administrative decision is required. If a hearing is held, the Decision Review Officer will suffice for another administrative decision and coach approval. If VSCM approval is required, the Decision Review Officer will submit his/her decision to the VSCM for approval.

[broncovet]

I note that many a Vet has tried to "CUE" a decision arguing that the decision maker did not follow the criteria for 10 percent and he met the criteria for 20% instead.  They always fail.  You do not have to have all the symptoms in a rating category to get a higher or lower evaluation.  Its a judgement call by the rating specialist as to the degree of your disability, and not subject to CUE.    Its like a bad call in an NFL game.  You can review the tape and see its a "bad call", but that wont mean the call will be changed after the game is over.  "Final score" means "final score".   Your decision became final after a year, and this judgement call does not meet the CUE standard of review.  

I think if one understands that CUE is a "standard of review" not some type of "error" it will help.  It is an error, but a specific kind of error.  The legal defination says that CUE is a "rare kind of error".  

Also dont forget this:  Did you have other RO decisions from 2004-2015?  You know, for something else, PTSD etc.  Well, when you got those, they "continued" your shin disability.  That means that decision maker agreed with the first decision maker, even if he did not specifically mention your shin splints were contined.     He did not see "CUE" in your decision, or he would have mentioned the same.   So, we have an initial decision maker, plus a subsequent decision maker who signed off on that decision.  Now you have a third decision maker who says "no, that is CUE".  No way, Jose, those are opinion differences, with 2 saying "ya" and only one saying "nay" and these differences are completely incompatable with the Cue standard of review as you have some debate going on here.  

Edited January 1, 2016 by broncovet

[pwrslm]

The report states:  "review of your case was requested and what we found was the medical evidence from
the VAMC in Fayetteville and from your private provider shows you have bilateral limitation in
flexion and extension at a compensable rate of 10 percent. Therefore, we have changed the code
sheet to reflect this decision and continued your overall evaluation of 80 percent."

What you see here is that they are giving you the 10 percent rating in a different way, which will not affect your overall rating.  If they give you 10 percent in the flexion/extension of both knee's, and kept the shin splints based on the code that they had, it would be pyramiding.  This is because the original rating authority gave this an incorrect rating code (IMO).  1

You should challenge this, based on the fact that the failure of the rating authority in the original claim to correctly apply the correct rating code, and that the correct code is "Shin splints are tiny fractures in the tibia (“shinbone”). They are rated under code 5262, impairment of the tibia".  They should make this correction administratively, the same way they are doing in providing you with the additional bilateral + 10 percent rating they identified above.  This screw up they made should bump your overall rating.

If you lose, you lose nothing but the time involved.  If you win, it was always what they owed you anyways.  Everything here appears as if the original date of the award would have to be used in the new addition of the error that the VA found in the failure of the original rating authority to award you compensation for your knee's.

Edited January 1, 2016 by pwrslm

[Berta]

Good info above.

You said:

"The problem the rating decision I received on 12/10/15 when I put in an increase for shin splints which is lower leg pain they examined me for the limitation of extension of knee and are now proposing to lower it again because i didn't have a limitation of extension of knee and the C&P exam said I have no history of shin splints. I'm trying to figure out the best way to straighten this mess out.  Any advice?"

If that C & P was done at a VAMC ,have you tried to get a copy of it yet?  Can you scan and attach it here? (Cover C file # name,prior to scanning it)

Also you can google the opiner to see if they were qualified to make that opinion.

The BVA web site is down again for maintenance but I did find this decision....the veteran was denied but there might be some info here on the shin splints criteria that could help you:

http://www.va.gov/vetapp09/files6/0947337.txt

Are you employed and if not,  do any of your SC disabilities severely impact on your ability to work?

"C&P exam said I have no history of shin splints"

Right there is a major error,if the C & P doc actually had read your med recs.