syne7

Hello all, Here is the rough draft of my CUE letter. I was rated at 0% for left ankle limitation of motion (5271) on 5/11/1998. Also, 10% for Asthma. Stupidly, I have never interacted with the VA till this year. I have been paying for my inhalers for 18 years. :(. I am revisiting my claims and believe I have a potential CUE based on the fact that no fatiguability tests or Deluca protocols were performed and the C&P Examiner measured my range of motion at 10 degrees of dorsiflexion but declared my range of motion as normal. I would appreciate any suggestions of help, especially in the area of Deluca protocols and fatiguability testing. My understanding is that I should have been asked to move my ankle rapidly several times to test for decrease motion and increased pain. Here is the rough draft of my letter: Department of Veterans Affairs April 6, 2016 Waco Regional Office 701 Clay Avenue Waco, TX 76799 CLAIM OF CLEAR AND UNMISTAKEABLE ERROR (CUE) 38 U.S.C. § 7111(a). REQUEST OF REVIEW OF DECISION FOR XXXXXXXXXXXXXXXXXXXXXX DATED 8-5-98 I am asserting that a clear and unmistakable error (CUE) was made my rating decision regarding my service connection for chronic left ankle sprain which was rated at 0% effective 5/11/1998. I respectfully request your review of this matter to determine if a CUE did occur and to take all appropriate action to address the situation. 1. In processing this claim, I believe there were several facts/descriptions that were not correctly presented to the rater or not considered in the decision. This resulted in a rating of 0%. Which I believe to be incorrect. 2. The rating decision dated 8/5/1998 states, “There was no evidence of limited range of motion in the left ankle to warrant a compensable evaluation.” I found several instances of evidence of limited range of motion, even on the C&P Exam. a. An entry from my service medical records dated 11/25/1992 showed left dorsiflexion at 0 degrees (a potential 100% impairment of the normal range of dorsiflexion defined by 38 C.F.R. § 4.71 of 0 to 20 degrees) and plantarflexion at 35 degrees (10 degrees of impairment from the 0 to 45 degree normal range of motion for plantarflexion defined by 38 C.F.R. § 4.71). b. Another entry dated 11/4/96 (Med Board Exam) where the physician stated “trace edema left ankle with slight decrease in range of motion.” c. The physician’s C&P exam noted a 50% limitation of dorsiflexion (10 degrees versus 20 degrees). The C&P examiner “pain with activity.” 3. The C&P Exam dated 1/17/1998 by Demarco stated ankle dorsiflexion at 10 degrees. Then follows up to say “full range of motion.” a. Normal range of motion 0 to 20 degrees of dorsiflexion per 38 C.F.R. § 4.71. Clearly 0 to 10 degrees is only 50% of the normal range of motion (0 to 20 digress) for dorsiflexion. I respectfully assert that 50% loss of motion, is not normal range of motion. 4. I also believe that statutory and regulatory provisions were not followed. During my C&P exams, no fatigability tests were performed and none of the Deluca protocols were followed. I was not asked to perform any repeated motions. 5. Further in examining my range of motion, I was asked to move the ankle as far as it would go, but not to indicate where I felt pain. As a soldier, I can bear a fair amount of pain even, and the range of motion observed, 10%, was quite painful. Noted pain in my ankle with activity and walking up steps increasing pain frequency and intensity, as well as swelling. The physician also noted my having to stop running and decrease activity to keep pain in moderate control. Further, the physician noted that the pain affect a core task of my job at the time moving computers. 6. As I stated very clearly, that I had pain with activity. Applying the required fatigability tests and Deluca protocols would have demonstrated enhanced pain and even more limited motion. 7. Clearly these factual errors, missing the multiple pieces evidence of limited motion, and not applying the appropriate statutory and regulatory provisions (tests & protocols). Would have made a material difference in the outcome of my rating decision. a. Based on rating code 5270 in dorsiflexion between 0 degrees and 10 degrees should be rated at 30%. This is exactly what the C&P examiner found and in service. Based on rating code 5271, marked limitation of motion would be rated at 20%. I believe pain in motion also merits a rating. I respectfully submit that I have met all the criteria for a CUE: 1. The claim I am asking you to review is a “closed claim” with a “final decision.” 2. Correct facts were not before the rating authority and by definition 10% dorsiflexion, cannot be “normal motion” and there was evidence of limited range of motion in the service medical records, the med board exams, and the VA C&P exam. 3. Protocols required by law were not followed such as feasibility tests and Deluca protocols. 4. Each of these CUEs would certainly change the outcome of the rating decision. I urge to examine this CUE petition and determine if an error was made. Thank you for your time and attention on this matter. Respectfully,

Hello, I am looking for IMO/IME Recommendations from the around central texas area. I am willing to drive 3-5 hours. Please share any experiences or contact info. Thanks, syne7