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Berta, One More Cue Question.


Guest Morgan

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Berta,

I beg your patience with another question about CUE. I did read your blog and the VA info, but I'm confused about a CUE I working on. I think the VA failed to apply the higher of two evaluations, but that gets really close to saying they didn't interpret or weigh the medical evidence right, which of course is not grounds for a CUE.

This condition had been treated for 25 years before the C&P exam. In 2000, the decision awarding the lower rating quoted the C&P examiner indicating “chronic venous stasis changes in the distal extremities with hyperpigmentation at the distal tibia with loss of hair.”

I think the VA failed to apply the higher of two evaluations, the key being the undebatable difference between “chronic” and “beginning.” Both persistent edema and stasis pigmentation are prerequisite for the higher rating, while only persistent edema is prerequisite for the lower rating; therefore, by law, I think the higher level should have been applied, especially with quoting the examiner’s precise "chronic" language. The VA concedes the persistent edema with the lower rating.

Is this a CUE?

Carrie

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Carrie- on the TDIU- I had a vet 2 Christmases ago with no VA rating whatsoever-

helped him apply for TDIU- he attached evidence to the 21-8940- and in three months he was awarded TDIU-

I feel the SC rating is often (nt always) insignificant for TDIU consideration-if the disability is due to service and precludes employment-

and it could also trigger the Extraschedular award of 100%-if not the TDIU.

On the CUE question:

I would state that the VA failed to apply the proper rating percentage for the DC code 7121 as the medical evidence showed a higher rating, in the past final VA decision,dated ____, was warranted.

I would state that the clear and unmistakable error was within VA's application of this reg:

from 38 C.F.R.- Book B Adjudication found at

http://www.warms.vba.va.gov/bookb.html#x--the VA's updated WARMS web site for 38 C.F.R.

§3.321 General rating considerations.

(a) Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and death pension, and in eligibility determinations. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. (Authority: 38 U.S.C. 1155)

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