PintoRacer

I am looking for a way or contacts to get the VA OIG to open an investigation in to rating reductions. I will be mailing this to my U.S. Representatives and any media organization I can get to listen. Below is the letter and statistics from the BVA Decision Website that is proof of rating reductions are being done with out observance to the law. My Letter. August 14, 2019 Re: Unwarranted Reexaminations leads to Improper Disability Rating Reductions for Stabilized Ratings under CFR 3.344 (a) and (b) I write this letter with some concern of retaliation from the Veterans Administration. While researching a rating reduction on my VA disability claim I found statistically significant data that nearly 70% of all rating reductions are not made in accordance with CFR 3.344(a) and (b) for stabilized ratings. Trending towards 80% for 2019. The data is easily verifiable on the public facing web site for Board of Veterans Appeals (BVA) decisions with some simple queries. In July 2018, the VA Office of Inspector General (OIG) released a report entitled “Unwarranted Medical Reexaminations for Disability Benefits”. I quote a key statement from that report: ”The reexaminations resulted in proposed benefit reductions for about 3,700 veterans. After the review period, these proposed reductions remained subject to a final decision and an appeal process; therefore, the review team did not make a determination on whether these reductions were justified.” I felt I was harmed by these unwarranted exams which led to improper unjustified rating reductions for my claim. But what I didn't know was how many other Veterans were also affected by improper rating reductions until I began querying BVA decisions. The BVA, through it's decisions, has confirmed the Regional Office must comply with CFR 38 CFR §3.344 (a) and (b) for Stabilized Ratings the same way it should have been complying with 38 CFR §3.327 for Reexaminations for Stabilized Ratings. A Stabilized Rating is one that has been in effect for more than 5 years. Unfortunately the BVA data reflects the Regional Office has continued the same improper strategy to reduce veterans benefits for many years now. The BVA considers these rating decisions to be improper, made with out observance to the law for stabilized ratings under 38 CFR §3.344 and void ab intio, but only if appealed. The VA gets away with these illegal reductions it if the veteran does not appeal. Please help stop this malfeasance. In many cases these improper individual rating reductions are made when the overall compensation is not reduced and due process is not required. The veteran may never appeals the individual rating because he or she is afraid and intimidated his overall compensation will be reduced or eliminated with a 5 year wait for the BVA to correct the error. I personally do not believe an 80% error rate is a mistake by the Regional Office. I contend it is a illegal strategy to defraud veterans of their hard earned benefits. I therefore respectively request my U.S. Senators and U.S. Representative to request an VA OIG investigation into the improper and illegal reduction in individual disability ratings for stabilized ratings under 38 CFR §3.344. Respectfully, My name BVA STATS BVA STATS for 38 C.F.R 3.344 – Stabilized Ratings 2019 2018 2017 2016 2015 2014 Total BVA Decisions for the past five years. 40997 87917 61245 48547 54511 52538 Total BVA Decisions where 38 C.F.R. 3.344 was applied. 554 1080 552 447 572 465 Percentage of Total Appeals where 3.344 was applied. 1.35% 1.23% 0.90% 0.92% 1.05% 0.89% Improper Reductions for Stabilized Ratings Query: (3.344 AND "was improper" AND "void ab initio") 103 165 97 63 83 75 Query: (3.344 AND "was not proper" AND "void ab initio") 98 137 80 61 81 34 Query: (3.344 AND "was not proper") NOT (void,ab,initio) 93 204 79 71 75 70 Query: (3.344 AND "was improper") NOT (void,ab,initio) 144 238 98 78 87 71 Regional Office Improper Reductions for 5 year Stabilized Ratings. 438 744 354 273 326 250 Regional Office Error rate for 5 year Stabilized ratings. 79.1% 68.9% 64.1% 61.1% 57.0% 53.8% Total proper reductions Query:(3.344 NOT "was not proper" NOT "was improper" NOT "void ab initio") 150 367 206 161 227 205

This decision came out of the Denver RO. I put in XXXX for the dates, but the real ones are in the letter we mailed. We also included the original decision letter as an enclosure showing the award with an AICD specifically listed. If he had been within the appeal period we would have filed a NOD. He just accepted the VA rating as being correct, not knowing how to read or interpret the regulations. But since he was outside that period I suggested we go the CUE route as it was clearly a mistake to rate it at 10%. I would expect this happens more than I would like to think.

I am working with a friend and co-worker on what I believe is a CUE in a previous rating decision of 10% for ventricular arrhythmia with AICD. He was service connected for this disability via Agent Orange presumption in a June 2013 decision. The decision letter specifically notes "ventricular arrhythmia with AICD" however they indicate the 10% rating was based only on the use of "continuous medication", but also lists METS and Ejection Fractions. The text below my name is what I wrote for him. Am I correct in my belief that this a CUE? If so, they owe him retro back to the original claim date in 2012. Any and all opinions are welcome. Thanks, Dean ******************** Claim of Clear and Unmistakable Error in a prior decision dated XXX,XX 2013. A CUE determination must be based on the record and the law that existed at the time of the prior decision. It was clearly erroneous to rate my Ventricular Arrhythmia with an implantable AICD at 10% disabling. Section 4.100 clearly states MET criteria is NOT required for rating purposes “When a 100% evaluation can be assigned on another basis”. Diagnostic code 7011 is very specific and requires the adjudicator to rate ventricular arrhythmia with an implantable AICD at 100% disabling. To rate this disability at 10% only on the basis of it “requiring continuous medication”, MET values, or ejection fractions is a Clear and Unmistakable Error (CUE) in the prior adjudication based on the medical records showing an implanted AICD and law in existence at the time of the prior rating decision. This error is undebatable and reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. I therefore request the 100% rating be retroactively applied to the original effective date of October XX. 2012 because the Department of Veterans Affairs (VA) failed to follow a procedural directives (legal error) listed in CFR 4.100 and specific rating requirement listed in diagnostic code 7011 (adjudication error). §4.100 Application of the evaluation criteria for diagnostic codes 7000-7007, 7011, and 7015-7020. (a) Whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases. (b) Even if the requirement for a 10% (based on the need for continuous medication) or 30% (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, METs testing is required in all cases except: When there is a medical contraindication. When the left ventricular ejection fraction has been measured and is 50% or less. When chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year. When a 100% evaluation can be assigned on another basis. © If left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability 7011- Ventricular arrhythmias (sustained): For indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place ... 100%

I used the already existing medical and lay evidence with in my C-file, that was before the RO at the time of prior decision, and was sufficent to grant by analogy the original 40% award. (ie. No NEW evidence is allowed for CUE). The proposed reduction tried to use a new medical determination, based on Wikipedia, and a new exam to call CUE on the prior award. This is not allowed per the M21 Rules for Determining a CUE. The RO stated today, that after further review, they were vacating the proposed reduction as it did not "clearly rise to the level of CUE". He didn't provide details and I didn't quiz him on the specifics, I did however thank him for personally calling me and informing me of the decision. It made my day. So I would have to YES, The VA does apply the same stringent definition of CUE to itself when using CUE to reduce an award.

I sent a note to Hickey last Wednesday. My claim was completely resolved in my favor today. :) I really can't believe it is over. Special thanks to all on this board that provide advice and direction to my fellow veterans.

I got great news today. They are withdrawing the proposed reduction in my benefits. I am glad I studied the elements required for a CUE determination listed in M21 and CAVC decisions. :) Best of luck to the rest of you guys. I am officially out of the backlog / appeals process with an equitable award of 70% .

I sent an email to HIckey yesterday just to see if or how long it would take for someone to respond. I don't really expect a reply, but you never know. I will update the post if I hear from them.

My response: Re: 339/215/LSP – Evidence and statements against DRO proposed reduction dated December 30, 2013. I am currently service connected under diagnostic code 5299-5202 (impairment of the humerus). The proposal to reduce my rating would discontinue (sever) service connection for a humerus disability and substitute a shoulder disability. On May 28, 2009 I submitted a claim for the residuals of a comminuted left humerus fracture. On March 23, 2010 and again on September 2, 2010 I specifically clarified the disability I sought was for a bone deformity of the humerus under diagnostic code 5202. The service-connection for this disability was granted March 30, 2011 by a DRO decision. In malunion, the bone may have healed at a bent angle (angulated), may be rotated out of position, or the fractured ends may be overlapped causing bone shortening. Malunion may be caused by inadequate immobilization of the fracture, misalignment at the time of immobilization, or premature removal of the cast or other immobilizer. The previous DRO decision date March 30, 2011 granting service-connection specifically stated the evidence shows the bone is rotated, a lay person can see that my left arm is shorter than my right, both the previous decision and the “proposal to reduce” states that the xray evidence shows a deformity at the site of the fracture and §4.44 states that angulation is expected in the shortening of a long bone. My contention is the evidence in existence at the time, and supported by a previous VA determination, clearly meets the criteria for malunion with deformity under DC 5202. In reviewing the proposed reduction letter, the CUE error specifically stated is; ” It was not correct to rate this under a shoulder code even if citing that it was rated on an analogous basis. “ In context of the proposal “this” means; “The injured joint in service was the ELBOW not the shoulder.” It was neither. Hospital records document the injury as a “comminuted oblique fracture of left distal humerus” . The medical term supracondylar is defined by Dorland's medical dictionary as; above a condyle. Meaning “above the elbow” joint. In all the documents I submitted I never once claimed an elbow or shoulder injury. My elbow is normal and was not injured in the accident. There is also no evidence in my medical records of diagnosis or treatment of an elbow injury. There is, however, a preponderance of evidence of diagnosis, treatment, consistent complaints of pain and weakness over the past 30+ years, military profiles, and work restrictions for the residuals of a oblique comminuted fracture of the left distal humerus. The essence of a CUE is that it can not be debatable. I believe that if a reasonable mind properly reviewed of all the evidence they would concur that 'this' disability was not caused by an elbow or shoulder injury, but by the oblique comminuted fracture of the left humerus that resulted in malunion with deformity. This clearly makes the CUE debatable therefore the CUE does not exist. There is no such thing as a partial CUE, so if I meet the objective requirements for malunion with deformity under DC 5202 then the additional evidence listed in the May 30, 2011 decision that supports the increased rating, by analogy, under the same diagnostic code can not be CUE either. Rating by analogy does not require all objective criteria be met. How the evidence was weighed and evaluated also does not rise to the level of CUE. I therefore request all CUE claims affecting DC 5202 in the Proposed Reduction be withdrawn and the May 30, 2011 decision continued. I certify that the statements on this form are true and correct to the best of my knowledge and belief.

Here is the proposal to reduce my rating. A little history first. I was involved in a training accident in 1982 where a gun jeep went into a ditch at high speed. My hospital records show a diagnosis of “oblique comminuted fracture of the left distal humerus” . The humerus was shattered in 6 – 8 pieces, some small pieces are still visible on xray as well a bone spikes and spurs, the surgeon notes describe debridement and copious cleaning of the wound. It was repaired with a plate and 8 screws. The arm is visibly shorter and angulated and the VA lists this in the original decision. An infection was also documented in my SMRs and a VA examiner documented the associated muscle issue. I specifically applied for a disability for residuals of an impairment of the humerus under DC 5202. The VA granted a 40% analogous evaluation, under DC 5202, for this injury due to the associated muscle injury, scarring, shoulder issues and the bone deformity. I have requested a predetermination hearing but has not yet been scheduled. Later exams use the term Supracondylar fracture to describe the injury. The VA is now saying in the proposal it was an elbow injury and it was CUE to assign DC 5202 for an elbow injury. Googling Supracondylar Fracture shows this appears to be based on a wikipedia definition as it was copied word for word into the proposal. They want to discontinue DC 5202 and substitute DC 5024 at 10%. At one time I both 5024 and 5202 ratings assigned, but the 5024 rating was discontinued over a year ago so only 1 evaluation exists for 5202. not 2 as mentioned in CUE #3. My specific issue involves the CUE #2 listed below. Any help is appreciated. Please read CUE #2 carefully, I am trying to determine the specific error of fact or law. I am also concerned about the use of recent exams as the CUE requirements limit the evidence to that which existed at the time of the error. PROPOSAL FOLLOWS We received a Notice of Disagreement from you on November 16, 2012 about one or more of our earlier decisions. You further requested review of your claim by a Decision Review Officer (DRO). Accordingly, this decision is the result of a de novo review, or "fresh look" at your claim. 1. A clear and unmistakable error was made in rating decision dated September 30, 2009 in assigning a 10% evaluation for the left elbow disability when a 0 percent evaluation was appropriate. 3. A clear and unmistakable error was made in rating decision dated March 30, 2011 in assigning a 40 percent evaluation for the left shoulder. 3. A clear and unmistakable error was made in rating decision dated March 30, 2011 in assigning 2 evaluations (under DC 5299-5202 and 5099-5024) evaluations for the left shoulder. It is proposed to discontinue 5299-5202 and rate the condition under 5099-5024 with a 10%evaluation assigned. The combined evaluation for all of your service-comiected disabilities will drop from 70% to 50%. We do not add up the percentages of your disabilities to find the combined evaluation. We use a combined rating table to compute it. REASONS FOR DECISION 1. Whether clear and unmistakable error was made in rating decision dated September 30, 2009 in assigning a 10 percent evaluation for the left elbow when the facts warranted a 0 percent evaluation. 2009 rating for the left elbow assigned a 10% for painful motion but the exam DID not show painful motion. There was slight (0-130 degrees) limitation of motion but no degenerative joint disease so the appropriate eval was 0% not 10%. The next rating decision dated December 9, 2009 continued the evaluation noting painful range of motion in the outpatient treatment reports but the painful range of motion referenced in these reports was in the shoulder joint, not the elbow joint. Since both of the disabilities use the term "humerus" in the description, this could explain the disparity but one is the distal humerus (the elbow) and the other is the proximal humerus (the shoulder). Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. The decision to grant a 10 percent evaluation for the left elbow is clearly and unmistakably erroneous because the evidence did not show painful range of motion and the range of motion limitation did not meet the compensable requirements and there was no evidence of degenerative jooint disease in the joint at that time.. The decision was not properly based on the available evidence of record at the time and the rules then in effect. If the evaluation is reduced from 10% to 0% the combined evaluation would be reduced from 30% to 20% for the period 4-30-09 to 6-17-10. 2. Whether clear and unmistakable error was made in rating decision dated March 30, 2011 in assigning a 40 percent evaluation for the left shoulder. This case has had confusion throughout because of the term "humerus". The humerus is a bone which is between the elbow joint (this would be the distal humerus) and the shoulder joint (this would be the proximal humerus). On the last exam, the examiner himself confused the issue by diagnosing a "Shoulder left supracondylar fracture, old, healed, internal plate fixation". Supracondylar fracture is defined as "A supracondylar fracfgre is a fracture. usually of the distal humerus just above the epicondyles....Presenting complaints: The individual presents with history of a falling on an outstretched hand followed by pain. swelling and inability to move the affected elbow.....On examination: Unusual prominence of olecranon process but because it is a supracondylar fracture, the three bony point relationship is maintained, as in a normal elbow." The injured joint in service was the ELBOW not the shoulder. the shoulder has been service connected as secondary to the elbow injury due to altered mechanics and muscle tension. There is no fiacture in the shoulder joint. The most recent x-ray report (8-l-l2) shows the following: "Evaluation of the scapula and shoulder joint as well as adjacent left hemithorax is unremarkable for fractures. No lytic or blastic lesions appear no soft tissue masses or calcification. Impression: Unremarkable scapula. Primary Diagnostic Code: NORMAL" On the VA exam of 6-29-12, the left shoulder flexion was 0-180 degrees with pain at 0 degrees; abduction was 0-180 degrees with pain at 0 degrees. There was no change in the range of motion findings after repetitive testing (a method of judging the effects of pain, weakness, etc, on the function of a joint) and there was no evidence of fatigability, incoordination or weakness. The Veteran does not have any functional loss and/or functional impairment of the shoulder and arm per the examiner. Motor function and strength was normal. The Hawkins’ Impingement Test was positive as was the empty-can test, Crank apprehension and relocation test, and external rotation/infraspinatus strength test. There is no history of mechanical symptoms (clicking, catching, etc.). There is no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. In the Statement of the Case dated 3-25-l l, the DRO stated that this condition was rated analogous to this Qondition because of the faulty unionjbut the x-ray report does not show any faulty or fibrous union. The last x-ray of the elbow (6-29-12) showed "Left elbow: Plate screw fixation device is seen across the distal aspect of the left humerus. Hardware appears intact. There is some deformity of the distal humerus consistent with previous fracture. Minor degenerative changes are seen at the elbow. Impression: Previous fracture distal left humerus appearing intact and healed. Hardware appears intact. No interval change compared to study of 8/31/09." The NHI says this about supracondylar fractures: "Supracondylar fractures are a common elbow injury..." It was not correct to rate this under a shoulder code even if citing that it was rated on an analogous basis. There is no evidence of a fibrous union or faulty union. To warrant a 40% evaluation under an elbow code for a non-dominant elbow there would have to be severe limitation of motion (flexion limited to 45 degrees or less and extension limited to 110 degrees or less). A flail joint would warrant a 40% evaluation. This Veteran has nearly normal elbow function. It is proposed to reduce the evaluation of the left elbow injury rated under the shoulder strain from 40% to 10%. We have proposed a l0 percent evaluation for your shoulder condition based on: ~ Painful motion of the shoulder. (38 CPR §-1.59 allows consideration of fimctional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since you demonstrate painful motion of the arm at the shoulder, the minimum compensable evaluation of 10 percent is assigned.) Additional symptom(s) include: ' X-ray evidence of traumatic arthritis The provisions of 38 CFR §§4.40 and 4.45 concerning ftmctional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995), have been considered and applied under 38 CFR §4.59. A higher evaluation of 20 percent is not warranted for traumatic arthritis unless there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A higher evaluation of 20 percent is not warranted for limitation of motion of the shoulder unless there is limitation of motion at shoulder level. The combined evaluation would be reduced from 70% to 50%. 3. Whether clear and unmistakable error was made in rating decision dated March 30, 2011 in assigning 2 evaluations (under DC 5299-5202 and 5099-5024) evaluations for the left shoulder. 38 CPR 4.14 prohibits the evaluation of the same disability under more than one code. The rating of 3-3 0-1 l assigned 2 evaluations for the left shoulder under diagnostic codes 5299-5202 and 5099-5024. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. The decision to evaluate the shoulder under two codes is clearly and unmistakably erroneous because it is prohibited by law. The decision was not properly based on the available evidence of record at the time and the rules then in effect. lt is proposed to discontinue 5299-5202 and rate the condition under 5099-5024 with a 10% evaluation assigned.

Does the VA apply the same stringent definition to itself when using CUE to reduce an award? Specifically the requirement to use the records that existed at the time of the CUE or can they use new evidence from a recent exam under 3.105(e). I understand a new exam can be used to sever service connection under 3.105(d) if a doctor certifies the initial diagnosis was not correct. Any info helps. Thanks

Sharing an answer to my own question. My VSO guy said the bone deformity claim would not be considered pyrimiding. The "Principles of Combined Muscle Injuries" does not allow me to open a claim on the muscles of the same body part that the nerves have already been rated. The muscle injury can be used to form a more complete picture and apply for an increased nerve rating. Thanks, Dean a.k.a. PintoRacer

Thought I would respond to my own question with the information provided by my VSO guy. He said I can not obtain a seperate rating for my muscle injury. Dean

The is the excerpt I need some help with. (a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. I am currently rated at 20% for "8513 - All radicular groups" for residuals of a closed comminuted fracture of the left humerus (8 Pieces = 8 retained screws) . I am also rated at 10% for "8024 - Tenosynovitis" for my left arm and left shoulder, and 0% for "5242 - Degenerative arthritis of the spine". My left triceps at the fracture site is very badly injured but is un-rated. The bone is also un-rated. Does the combined rating statement above mean a muscle injury rating for my left upper extremity would not increase my over all rating? My VSO guy is recommending I pursue an increase to "8513 - All radicular groups". Thanks, Dean a.k.a PintoRacer

I am new to this forum and hope I post this question in the correct area. I am currently rated at 20% for "8513 - All radicular groups" for a closed comminuted fracture (8 pieces = 8 retained screws) of the left humerus. They also assigned 10% for "5024 - Tenosynovitus" left arm and left shoulder for chronic pain. Would opening a new claim for bone deformity and tricep muscle injury be considered pyramiding? Please assume I have the medical evidence to support the new claim. Thanks, Dean a.k.a. PintoRacer