In regards to Clear and Unmistakable Error found in the original rating decision by the Department of Veterans Affairs on behalf of ____________; the following Code of Federal Regulations was not, as required by law, applied:
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.
At the time of initial rating evaluation, September 1999, all medical records including SMR's, MRI's, EMG's and numerous pages of Doctors reports/evaluations/diagnosis' were in the hands of the rater.
Veteran's Application for Compensation or Pension dated January 7th, 1999
Nature and History of Disabilities Section 17.
SCD's: Ruptured & Herniated Discs, Sciatic Nerve Damage, Degenerative Disc Disease, Dehydration of Lower Lumbar, Migraine Headaches, Severe Chronic Back Pain, Spasms, Chronic Sinusitis & Bronchitis, and all other SCD's as noted in SMR's.
Sciatic Nerve Damage was specifically requested as part of my reason and basis for compensation.
1999 Rating decision Reasons and Bases:
Service connection for central disc bulge L5-S1 has been established as directly related to military service. This condition is evaluated as 40% disabling from April 22nd 1998.
Next paragraph:
August 1997 and MRI revealed TWO disc bulges, the largest one at L5-S1 and contact but did not compress nerve roots….
(In the same paragraph diagnosed sciatic neuropathy defined)
Straight leg raising was positive on the left at 20 degrees with radicular pain from the lower back to the left posterior buttock and left gastrocnemius muscle. X rays showed Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of S1 nerve roots.
Clear and Unmistakable Error in FACT recorded in rating decision per CFR 38 Part 4.2. Section 4.2 in CFR Interpretation of examination reports: It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.
Impression as taken from the actual MRI findings report dated August 11th, 1997.
1. Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of the S1 nerve root, left greater than right.
Also in record to support continued and unremitting Sciatic Nerve damage was EMGfindings dated January 14th 1999.
EMG Findings:
There were moderate chronic neurogenic changes in the form of poor activation and increased duration of amplitude of many to all the remaining motor units in the left flexor digitorum longus, extensor digitorum brevis and semitendinosus muscles. There were mild to moderate neurogenic changes in the left tibialis anterior muscle.
Impression:
EMG and nerve conduction studies of the lower extremities and related paraspinal muscles reveal changes suggestive of left L5 Radiculopathy. This is moderate in degree of electricity.
Service Record documents from:
Neurosurgery Clinic dated January 9th 1998.
Diagnosis: Chronic Back Pain/Herniated L5-S1
Left S1 Radiculopathy Left Leg
Findings from Physical Evaluation Board Proceedings:
Diagnosis and Ratings:
Category 1:
Chronic Back Pain/ Herniated L5-S1
Category 2:
Left S1 Radiculopathy, Left Leg related to diagnosis 1.
1. The September 1999 rating decision contains clear and
unmistakable error in not only ignoring evidence but denying entitlement to service connection for Sciatic Nueropathy as part of the original diagnosis and rating of: CFR 38 Part 4 dated 1998-1999: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief rating of 60%. CFR 38 Sec. 4.21 Application of rating schedule. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. Based on the requirements of the Law at the time of decision and evidence of a Clear and Unmistakable Error, I am entitled to a retroactive date to initial claim January 7th, 1999 with an effective date of April 22, 1998 for compensation at the 60% level.<BR style=mso-special-character: line-break"><BR style="mso-special-character: line-break">
Edited by Tbird Removed Personal Identifying Information
Question
4myboys
To: Department of Veterans Affairs
Decision Review Officer
In regards to Clear and Unmistakable Error found in the original rating decision by the Department of Veterans Affairs on behalf of ____________; the following Code of Federal Regulations was not, as required by law, applied:
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.
At the time of initial rating evaluation, September 1999, all medical records including SMR's, MRI's, EMG's and numerous pages of Doctors reports/evaluations/diagnosis' were in the hands of the rater.
Veteran's Application for Compensation or Pension dated January 7th, 1999
Nature and History of Disabilities Section 17.
SCD's: Ruptured & Herniated Discs, Sciatic Nerve Damage, Degenerative Disc Disease, Dehydration of Lower Lumbar, Migraine Headaches, Severe Chronic Back Pain, Spasms, Chronic Sinusitis & Bronchitis, and all other SCD's as noted in SMR's.
Sciatic Nerve Damage was specifically requested as part of my reason and basis for compensation.
1999 Rating decision Reasons and Bases:
Service connection for central disc bulge L5-S1 has been established as directly related to military service. This condition is evaluated as 40% disabling from April 22nd 1998.
Next paragraph:
August 1997 and MRI revealed TWO disc bulges, the largest one at L5-S1 and contact but did not compress nerve roots….
(In the same paragraph diagnosed sciatic neuropathy defined)
Straight leg raising was positive on the left at 20 degrees with radicular pain from the lower back to the left posterior buttock and left gastrocnemius muscle. X rays showed Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of S1 nerve roots.
Clear and Unmistakable Error in FACT recorded in rating decision per CFR 38 Part 4.2. Section 4.2 in CFR Interpretation of examination reports: It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.
Impression as taken from the actual MRI findings report dated August 11th, 1997.
1. Degenerative Disc Disease at L5-S1 with acquired mild spinal canal stenosis and the appearance of compression of the S1 nerve root, left greater than right.
Also in record to support continued and unremitting Sciatic Nerve damage was EMG findings dated January 14th 1999.
EMG Findings:
There were moderate chronic neurogenic changes in the form of poor activation and increased duration of amplitude of many to all the remaining motor units in the left flexor digitorum longus, extensor digitorum brevis and semitendinosus muscles. There were mild to moderate neurogenic changes in the left tibialis anterior muscle.
Impression:
EMG and nerve conduction studies of the lower extremities and related paraspinal muscles reveal changes suggestive of left L5 Radiculopathy. This is moderate in degree of electricity.
Service Record documents from:
Neurosurgery Clinic dated January 9th 1998.
Diagnosis: Chronic Back Pain/Herniated L5-S1
Left S1 Radiculopathy Left Leg
Findings from Physical Evaluation Board Proceedings:
Diagnosis and Ratings:
Category 1:
Category 2:
1. The September 1999 rating decision contains clear and
unmistakable error in not only ignoring evidence but denying entitlement to service connection for Sciatic Nueropathy as part of the original diagnosis and rating of: CFR 38 Part 4 dated 1998-1999: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief rating of 60%. CFR 38 Sec. 4.21 Application of rating schedule. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. Based on the requirements of the Law at the time of decision and evidence of a Clear and Unmistakable Error, I am entitled to a retroactive date to initial claim January 7th, 1999 with an effective date of April 22, 1998 for compensation at the 60% level.<BR style=mso-special-character: line-break"><BR style="mso-special-character: line-break">
Edited by TbirdRemoved Personal Identifying Information
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