green

Should I ask the VA to CUE theirselves?

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I was rated in April of last year on several conditions.  I applied for a rating on peripheral neuropathy of my feet and hands and had a nerve conduction study done and attached to my request.  When I received my rating they incorrectly stated that for my legs/feet I was rated at 20% because a higher rating of 30% couldn't be assigned as it required incomplete paralysis.  They should have used the Sciatic Nerve criteria which actually has 5 different potential ratings.  Is this an area where I should ask the VA to CUE theirselves?

Under the rating criteria they must have utilized the wrong rating criteria, as the C&P exam referenced the Sciatic Nerve.  30% isn't even an option under 8520 there is actually levels they neglected to address:

My C&P

          Sciatic nerve

 

            Right: [ ] Normal   [X] Incomplete paralysis   [ ] Complete paralysis

           

                   If Incomplete paralysis is checked, indicate severity:

                   [ ] Mild          [X] Moderate          [ ] Moderately Severe

                   [ ] Severe, with marked muscular atrophy

                  

            Left: [ ] Normal   [X] Incomplete paralysis   [ ] Complete paralysis

          

                   If Incomplete paralysis is checked, indicate severity:

                   [ ] Mild          [X] Moderate          [ ] Moderately Severe

                   [ ] Severe, with marked muscular atrophy

How Sensory Loss Should be Rated

M21-1lll_iv_4_SecG.  This document was updated in January of last year. 

b  Assigning Level of Incomplete Paralysis

The table below provides a general description of each level of incomplete paralysis of the upper and lower peripheral nerves.

 

Degree of Incomplete Paralysis

Description

Mild

subjective symptoms or diminished sensation

 

Moderate

absence of sensation confirmed by objective findings

Severe

more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes.

 

Issues addressed related to atrophy, weakness and diminished reflexes

C&P

    b. Deep tendon reflexes (DTRs)

   

Rate reflexes according to the following scale:

         0  Absent

         1+ Decreased

         2+ Normal

         3+ Increased without clonus

         4+ Increased with clonus

       Knee:

         Right: [X] 0  [ ] 1+  [ ] 2+  [ ] 3+  [ ] 4+

         Left:  [X] 0  [ ] 1+  [ ] 2+  [ ] 3+  [ ] 4+ 

       Ankle:

         Right: [X] 0  [ ] 1+  [ ] 2+  [ ] 3+  [ ] 4+

         Left:  [X] 0  [ ] 1+  [ ]

Nerve Conduction Study:

6/16/2015 "Brief neurological exam: Symptom focused neurological exam

shows loss of sensation in the hands and feet, absent ankle jerks and give way right foot dorsiflexion weakness.

VA Podiatry notes:

Musculoskeletal:  The major joints of the foot and ankle have adequate ROM

bilaterally without crepitus.  Dorsiflexion of the hallux and foot is weak

 

bilaterally.  Remaining muscle groups have adequate strength. "

 

Sciatic nerve.

8520    Paralysis of:

 

                  Complete; the foot dangles and drops, no active movement possible

                        of muscles below the knee, flexion of knee weakened or (very

                        rarely) lost.......................................................................................................... 80

                  Incomplete:

                        Severe, with marked muscular atrophy.............................................................. 60

                        Moderately severe ............................................................................................. 40

                        Moderate............................................................................................................ 20

                        Mild    ................................................................................................................ 10

 

There is actually a "Moderately Severe" rating where I believe I should have been rated as I may not have severe paralysis I certainly exceed the criteria spelled out in M21-1lll_iv_4_SecG for "Moderate".

Edited by green
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If you feel the medial evidence they had warranted a different Diagnostic Code and higher rating, by all means file a CUE against them.

All diagnostic codes are found in the VA Schedule of Ratings here: They are about half way down your scroll bar.It is a long document.

The CUE rests on what evidence they had.

Check over the Evidence List as well as the Diagnostic codes they used.

Based on what you said they stated in the decision and the C & P results this does look like  a CUE to me.

Was that C & P the first one you had for this condition? Maybe I should say instead, was that C & P exam the Only one you had for this condition?

I have a CUE pending whereby, in spite of my evidence -which they chose to ignore- they used as older rating that I filed CUE on years ago but didn't even copy the older ratings correctly. This is why I asked if this was the only C & P exam you had.

 

Edited by Berta
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Hi Berta, I had a C&P on my feet back in the early 1990's but they didn't reference it.  I can see where I should have had at least recieved a 10% rating even back then given the language states that even a subjective symptoms should get you 10%.  Also I Had medical care in Alaska from 1993 - 2002 and they said Alaska had no records.  I asked for my medical records (FOIA for my C-File) over a year ago and still have seen nothing yet.  My ratings were completed April 18th of 2016.  I was hoping to get my C-file before the year was up so that I could see if they missed anything else.

Edited by green

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2 hours ago, Berta said:

If you feel the medial evidence they had warranted a different Diagnostic Code and higher rating, by all means file a CUE against them.

All diagnostic codes are found in the VA Schedule of Ratings here: They are about half way down your scroll bar.It is a long document.

The CUE rests on what evidence they had.

Check over the Evidence List as well as the Diagnostic codes they used.

Based on what you said they stated in the decision and the C & P results this does look like  a CUE to me.

Was that C & P the first one you had for this condition? Maybe I should say instead, was that C & P exam the Only one you had for this condition?

I have a CUE pending whereby, in spite of my evidence -which they chose to ignore- they used as older rating that I filed CUE on years ago but didn't even copy the older ratings correctly. This is why I asked if this was the only C & P exam you had.

 

Berta,
Is there any difference between "asking the VA to CUE themselves" vs. filing a CUE claim? Are they one in the same?

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No Vync.

A traditional CUE is filed on an unappealed decision.

I made up this tactic ,as to asking them to CUE themselves within the appellate period.It sure has worked for me.

It looks like this vet has time to file a CUE yourself claim, but will need to file a timely NOD as well.

This thread holds my most recent CUE yourself claim:

I briefly described my original HBP 1151 claim of 2012 there and then Asked them to CUE themselves under auspices of 38 USC 5109 because the decision contained a violation of 38 CFR 4.6, as they AGAIN ( they have done this to me for every claim I have had) they fsailed to onsider the sole piece of probative evidence I needed.

As you can see it went very fast after I slapped the CUE on them as soon as I got the decision.

 

Edited by Berta

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1 hour ago, Berta said:

No Vync.

A traditional CUE is filed on an unappealed decision.

I made up this tactic ,as to asking them to CUE themselves within the appellate period.It sure has worked for me.

It looks like this vet has time to file a CUE yourself claim, but will need to file a timely NOD as well.

This thread holds my most recent CUE yourself claim:

I briefly described my original HBP 1151 claim of 2012 there and then Asked them to CUE themselves under auspices of 38 USC 5109 because the decision contained a violation of 38 CFR 4.6, as they AGAIN ( they have done this to me for every claim I have had) they fsailed to onsider the sole piece of probative evidence I needed.

As you can see it went very fast after I slapped the CUE on them as soon as I got the decision.

 

Thanks Berta.

Two more quick questions:

1. If the appellate period has expired, is the only option a normal CUE?

2. If the decision was appealed, does it make any difference?

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