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 havegrantedserviceconnection·foryour bilateralshinsplints. Theavailableservice medicalrecordssubmittedforreviewshowyou wereinitially treatedonAugust13,1999 for bilateralshinpainafter running. Youwerediagnosedwithshinsplints,providedwith Naprosynfordiscomfort,andplacedonthirtydayslimitedduty.Yourrecordsalsoshow six additional,periodicmedicalreportsthroughSeptember2003toobtainmedicationfor shin pain,andplacementonanothertwenty-onedayslimitedduty. Youexperience.symptomsofconstanttightness in the shinmusclesthateasilybecomeinflamedafterlongperiodsofstanding,running, walking,andclimbingupstairs. Treatmentwaslimitedduty,Motrin,andice. Functionalimpairmentisaninabilitytorun orstandforlongperiodsoftime however you denied any timelostfromworkduetothiscondition. We haveassignedaseparate10percentdisabilityevaluationforshinsplintsofeachleg. Physicalexaminationrevealedtendernesstopalpationoftheanteriortibiabilaterally ofbothtibia/fibulaperformedonthedayofexaminationwereconsiderednormal bilaterally.A review ofallfindingswhichincludestreatment inservice,VA examination,andyoursubjectivecomplaintof bilateralshinpainfallsin-betweenthe criteria fora0percent.evaluationanda10percentevaluation,Where thereisaquestion whichoftwoevaluationsshallbeapplied,thehigherevaluationwillbeassignedif disabilitypicturemorenearlyapproximatesthecriteriarequiredforthatrating. wise,thelowerratingwillbeassigned.Resolvingallbenefitofthedoubtinyour the10percentevaluationisassigned.Ahigherevaluationof20percentisnot warrantedunlessevidencedemonstrateslegflexion whichislimitedto30degrees. Since thisconditionisnotspecificallyshownintheVAregulations,ithasbeenrated onasimilarconditioninwhichtheanatomicallocationandsymptomsare closely rated. Additionally disabilities suchaslimitationofmotion,restrictionofactivity,and additionalfunctionalimpairmentcausedbypainhavealsobeenconsidered;eventhough theynot havebeenspecificallynotedduringVAexamination.
-----------------------------------------------
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?
Question
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.
-----------------------------------------------
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 by SemperFiGeekLink to comment
Share on other sites
Top Posters For This Question
6
3
2
1
Popular Days
Jan 1
6
Jan 2
6
Dec 31
1
Top Posters For This Question
SemperFiGeek 6 posts
Berta 3 posts
broncovet 2 posts
FormerMember 1 post
Popular Days
Jan 1 2016
6 posts
Jan 2 2016
6 posts
Dec 31 2015
1 post
Popular Posts
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 ma
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 fl
Berta
This is the CUE I filed , via email, in March 2015 to the Director of my RO: "I am requesting that the Buffalo VARO call a CUE (Clear and Unmistakable Error) on the recent 1151 decision I received reg
Posted Images
12 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now