Not sure if I am on the right track but my draft letter below should spell out most of the details. Interested in the thoughts of those with experience.
PS: I love this website but is time consuming.
re: Veteran: XXXXXXX X. XXXXXXXX
C-file: XXX XX XXXX
CLAIM OF CLEAR AND UNMISTAKABLE ERROR IAW 38 CFR 3.105(a)
This letter is regarding a decision on my claim for an increase in service compensation dated November 22, 2004 (Exhibit 1). A copy of the letter informing me of the decision dated May 5, 2005 along with the associated Rating Decision, dated April 29, 2005, is attached (Exhibit 2). The Rating Decision increased the rating for my service connected Degenerative Disc Disease from 0% disabling to 20% disabling effective November 29, 2004. This decision resulted in a new overall or combined rating of 30% as detailed in the May 5, 2005 letter.
I am requesting the Rating Decision, dated April 29, 2005 (Exhibit 1) be amended to conform to the “true” state of the facts and the law extant at the time of the adjudication.
The Rating Decision dated April 29, 2005 lists evidence supporting the decision which includes in part the “VA examination (Germany) dated February 23, 2005” (Exhibit 3).
The VA Examination titled “The Orthopedic Protocol Examination Report on XXXXX XXXXXXXXXXX C/SSN: XXX XX XXXX” dated February 23, 2005, contains an orthopedic diagnosis which includes “chronic radiculopathy L4 on the right”. In the same report, the examiner opined in part “the present status (herniation of 3 lumbar discs with radiculopathy on the right side) is consistent with worsening of the established sc degenerative disc disease of the lumbar spine.”
Evidence of record extant at the time of the rating decision is absent evidence that rebuts the results of the VA Examination.
Evidence of record extant at the time of the rating decision is silent any inadequacies regarding the diagnosis detailed in the examination report; the findings supporting the diagnosis detailed in the examination report; or the sufficiency of detail in the examination report for evaluation purposes.
The Rating Decision dated April 29, 2005 is silent of the subject of the diagnosed radiculopathy nor does it make any mention of the neurological symptomatology detailed in the examination report.
Evidence of record extant at the time of the rating decision include records of treatment from the Louisville, KY VAMC dated 04 Jun 2003 to include treatment for “Chronic low back pain” and prescriptions for treatment pain and muscle spasms. Diagnostic radiology reports from 4 Jun 2003 document mild scoliosis (levoscoliosis) and degenerative spur formation at the L3 and 4 level.
Findings of clear and unmistakable error (CUE):
The adjudication of my claim for an increase in service compensation dated November 22, 2004 incorrectly applied or failed to apply the provisions of 38 CFR Ch. I (7–1–04 Edition) § 4.71a which states under “General Rating Formula for Diseases and Injuries of the Spine” in part “Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.”
The adjudication of my claim for an increase in service compensation dated November 22, 2004 incorrectly applied or failed to apply the provisions of 38 CFR Ch. I (7–1–04 Edition) § 3.157 under “(a) General” which states in part “Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement.”
I make this request as a clear and unmistakable error (CUE) exists in that either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied. The errors are of the sort which, had they not been made, would have manifestly changed the outcome at the time they were made.
A reasonable mind, having reviewed all the facts known at the time, would have concluded the following:
The effective date of any increase in pension or compensation benefits resulting from the Rating Decision dated April 29, 2005 should be June 4, 2003, date of the informal claim, and not November 29, 2004 as detailed in the Rating Decision.
Neurologic abnormalities related to the service connected degenerative disc disease were present at the time of the VA examination completed on February 23, 2005; that the competent medical evidence of record supports that conclusion and that the neurologic abnormalities should be rated separately under the appropriate diagnostic codes.
The terms “Mild”, “Moderate”, Moderately Severe”, and “Severe” are not defined in the Rating Schedule.
The competent medical evidence of record finds that “There is noted a severe restriction of the lumbar motion and function” and that “All thoracolumbar motions were conducted slowly and carefully”. The neurological symptomatology in my lower extremities is productive of severe limitation of motion and function, continuous pain on use and recurrent severe flare-ups after trivial motions which more closely approximates moderately severe incomplete paralysis of the sciatic nerve.
The competent medical evidence of record finds that “There is noted a severe restriction of the lumbar motion and function” and that “All thoracolumbar motions were conducted slowly and carefully”. The neurological symptomatology in my lower extremities is productive of severe limitation of motion and function, continuous pain on use and recurrent severe flare-ups after trivial motions which more closely approximates severe incomplete paralysis of the anterior crural nerve (femoral).
Records of treatment for chronic low back pain at the Louisville, KY VAMC on June 4, 2003 documents the receipt of an informal claim for increase in the back condition establishing the proper effective date for increase as June 4, 2003, the date of receipt of the informal claim.
I respectfully request your prompt consideration of this request and that any decisions be expedited to ensure efficient processing and minimize incorrect payments.
Thank you for your service to the Veterans of this nation.
XXXXXX X XXXXXXXXX