Should I ask the VA to CUE theirselves?

[green]

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 February 15, 2017 by green

[Vync]

I tried to keep the questions related to the original topic, as I had a feeling they might be asked at some point. Also, I was curious about them myself.

Thanks Berta!

[FormerMember]

"2. If the decision was appealed, does it make any difference?" No, if the appeal was denied as well or actually even if it was awarded ,but it still appears to have a legal and detrimental error in it.

 

Actually, if the CUE was appealed and denied, the proper venue is before the BVA if you wish to reopen the CUE on new grounds, Berta. You always present your motion to revise to the party who last adjudicated it. If it was never appealed, you do not file at the BVA but rather the AOJ. 

[Berta]

Good point as always Alex, thanks.

An alleged CUE by the BVA needs a Motion filed...which is just a fancy way of saying it needs to be in a Motion template. Example the template would look like this:

STERLING T. RICE, APPELLANT,

V.

ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE

Motion for Reconsideration of a (date) Board of Veterans Appeals Decision.

 

 

Matt Hill has some very good info here in CUEs filed against BVA decisions:

https://www.hillandponton.com/appealing-a-bva-decision-clear-and-unmistakable-error/

Also a claimant can file a Motion for Reconsideration with the BVA.

And Rice V. Shinseki is an example of what a Motion against the BVA can reap:

http://www.uscourts.cavc.gov/documents/Rice-1445.pdf

 

 

[Berta]

ooops almost forgot Myler V Derwinski- courtesy of AskNod

https://veteranclaims.wordpress.com/2009/03/21/myler-vderwinski-no-90-1098-cue-456-472/