Dro Appeal Denied Ssoc Has A Cue

[les]

I received my ssoc today. I was denied for limited motion of left shoulder secondary to 0% sc of fractured clavicle. What can I do now since there is a obvious cue? My decision states a 0 percent evaluation is assigned unless arm motion is limited at the shoulder level which would warrant a rateing of 20 percent. I was awarded 0% sc for this in 2004. ssoc reasons and bases: The evidence reviewed in connection with your appeal does not demonstrate that a higher evaluation is warranted at this time. VA examination results show range of motion of the left arm as follows: flexion 0 to 180 degrees (normal), adduction 0 to 90 degrees (normal), abduction 0 to 180 degrees (normal), external rotation 0 to 90 degrees (normal), internal rotation 0 to 90 degrees (normal). What this DRO appeals person is stating is the NORMAL MOTION OF AN ARM (not my range of motion)! Does anyone beleive this ingnorance could actually happen after waiting years for a decision! This c&p I had was from 5/15/2007. PHYSICAL EXAMINATION: Using goniometry, I measured mild passive and active range of motion of shoulder, and normal range of motion was measured at 0 degrees with opposition, forward supiatination, and pronation, and they were normal. Shoulder rotation was measured with arm abducted to 90 degrees, able to flex to 90 degrees, and shoulder forward flexion was from 0-180 degrees. veteran has problems at 90 degrees, started having pain at 90 degrees. Shoulder abduction was 0-180 degrees, and veteran had pain again at 90 degrees in the left shoulder. Shoulder external rotation was 0-90 with pain at 60 degrees. Shoulder internal rotation 0-90 degrees, but veteran had pain at 60 degrees. Repetitive range of motion of the shoulder in forward flexation, at least three repetitions were done, and veteran had again problems at forward flexation at 90 degrees and shoulder abduction at 90 degrees. also, external rotation and internal rotation limitation was at 60 degrees where he said that he has pain. He was repeating more than three in all these directions. IMPRESSION: Midshaft deformity of left Clavicle related to prior healed fracture. Addendum The result of MRI from 5/16/07 was reviewed. There is full thickness tear at distal suprospinatous tendon attatchment at humeral head plate. The tear is at least as likely as not related to the clavicle injury in military exercise at 1973. If I am wrong about this appeal decision please tell me. If I am right by thinking there is a CUE please help me as I don't really know how to aproch this. Thanks so much! LES

Edited July 6, 2007 by les

[Berta]

Cue claim challenges can only be filed on final decisions-

this is a not a final decision- you still have appellate rights- I assume they sent you an I-9 form.

The VCAA letter and this decision tells you exactly what medical evidence you need for a higher rating.

To overcome a C & P exam that you feel is inaccurate -the best thing is to get an independent medical opinion-

Others here understand the ROM stuff much better than I do- and they will chime in-

hope you have copy of the actual MRI narrative to see if it was worded any differently that what they said in the SSOC.

I got so many SSOC in the past I could wallpaper a room with them-I rebutted them with continuous additional medical evidence until I succeeded.

This is unfortunate but what thousands of vets deal with-

the problem is- is this causing enough disability to be a ratable percentage-

as I see it.

[Ricky]

Cue as has been determined by the court is a legal issue and not a mere interpertation of medical evidence. Although one can be successful on a cue it is a very high mountain to climb. I am sorry but I do not see a cue here and your only recourse is the BVA with several IMO's supporting your claim.

[Vike17]

les,

From what you posted it appears that those range of motions are not quite limited to shoulder level. Therefore, the decision would be correct. Having said that, these range of motions are kind of borderline, maybe the BVA would see it different? Another thing you may want to take a look at is if there is any degenerative arthritis in the shoulder, which would warrant a 10% evalution since you have limited range of motion at a non compensable rate.

Vike 17

[Louie]

Can you say Deluca?

DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 94-242 ACTIVITY: RATING

NAME: DeLuca v. Brown

ISSUE(S): 38 C.F.R. §§ 4.40 and 4.45

ACTION BY COURT: Remand DECISION DATE: 9/22/95

BEFORE JUDGES: Nebeker, Kramer, Steinberg

FACTS: The veteran has established service connection for arthralgias of the left shoulder. A 20% evaluation was awarded in June 1990, following a VA examination which showed limitation of motion. The impression of the examiner was "frozen shoulder syndrome....with some degree of psychogenic overlay." It was noted that restricted mobility was due, in part, to voluntary guarding. On appeal to the BVA, the decision was affirmed. In a memorandum decision in May 1993, the Court remanded the appeal to the BVA to consider the application of 38 C.F.R. §§ 4.40 and 4.45. The BVA undertook no additional development but determined that sections 4.40 and 4.45 did not provide for an increased rating because the diagnostic code assigned under 38 C.F.R. § 4.71, 5201, "contemplates the functional loss resulting from pain on undertaking motion," and because the disability contemplated by section 4.45 is normally associated with muscle injury. Oral argument was presented on 7/31/95.

ANALYSIS: The Court held that DC 5201 does not subsume section 4.40 and that section 4.14 (pyramiding) does not prohibit consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups. The Court also held that the BVA's reading of section 4.45 cannot be sustained. The plain language of the regulation does not limit the evaluation criteria contained therein to muscle injuries. As such, a remand was required to obtain a new examination. The medical examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time. This was to be portrayed in terms of the degree of additional range of motion lost due to pain on use or during flare-ups. A similar opinion was to be requested concerning the disability factors contained in section 4.45.

RECOMMENDED VBA ACTION(S): None. The requirement to consider the provisions of 38 C.F.R. §§ 4.40 and 4.45 when evaluating disabilities involving the joints has been stated in other Court decisions, notably Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Quarles v. Derwinski, 3 Vet. App. 129 (1992); and Ferraro v. Derwinski, 1 Vet. App. 326 (1991).

ACTION BY DIRECTOR, C&P SERVICE:

Approved?

_X_ ___ ______________/s/___________________ 10/18/95

Yes No J. Gary Hickman Date

[Vike17]

Louie,

The "problems at 90 degrees" with forward flexion, "pain again at 90 degrees" on shoulder abduction, "pain at 60 degrees" with extrenal rotation ect... is taking the Deluca Criteria into account. As I said, those measurements are boderline and could go either way in a decision. And since this would require a judgment call on the decision maker, it would not constitute a CUE either.

Vike 17

[Berta]

Can you say OGC?

Held: May 2002

http://216.239.51.104/custom?q=cache:XGYQ-...326217334650925

I am not being a wise guy Louie -and I see your point on De luca but the "case by case" here in this OGC Pres Op is why I felt that maybe the disability does not rise to a compensable one-to the C & P doc and only a doctor can determine that- obviously the C & P doc didn't agree with the claim-

so I suggest an IMO--

also would not the VCAA letter spelled out the EED and the specifics on the rating anyhow?

Under Dingess Hartman? This would have shown the vet here what evidence he needed to highlight in his med records to stave off this type of C & P result-

it isnt too late to do that ----they probably gave him 60 days to rebutt as well as the I-9--

one thing for sure-there are plenty of ways a vet can reach SC if they keep appealing and finding more evidence.

Men and women this is how the VA sets landmines- read the wording of this C & P carefully and this is what I see- a good nexus statement associating the "tear" with the vets service yet no medical rationale on how the tear affects and disables him-so therefore what good is the nexus statement-

Vike is quite right to suggest potential arthritic involvement here-

would the MRI reveal that?

Maybe it did and this is not used in the SSOC.

HELD:

"Placement of a regulation in Part 3 or Part 4 of the C.F.R. is not determinative of its susceptibility to judicial review. Whether a section in Part 4 of the C.F.R. is considered part of the "schedule of ratings" must be assessed on a case-by-case basis. Generally, the prohibition on judicial review, under 38 U.S.C. §§ 502 or

7252©, of the schedule of ratings or disabilities refers only to the provisions that prescribe the average impairments of earning capacities, divided into ten grades of disability upon which payments of compensation are based, adopted and adjusted under 38 U.S.C. § 1155. "

Edited July 5, 2007 by Berta