Should I Go For It?

[Deacon 2011]

Team,

Retired from active duty in 06, submitted 15 years worth of documents from head injury (trigeminal neuralgia)... was only awarded 10% because the VA stated the trigeminal nerve was not paralyzed... appealed, denied. Fast forward to today... submitted same claim info back in March of 2010 as the condition worsened, listed the exact same conditions that have been ongoing and recorded for nearly 20 years... they changed the rating from 10% to 80%. Shouldn't they have done this from the beginning? Is this a CUE????

[Philip Rogers]

I can't say whether it's CUE but you can try it. You'll need to show they erred in their original decision and that it was not just a differing opinion. Personally, there's enough money at stake that I'd try it. jmo

pr

[sharon]

Team,

Retired from active duty in 06, submitted 15 years worth of documents from head injury (trigeminal neuralgia)... was only awarded 10% because the VA stated the trigeminal nerve was not paralyzed... appealed, denied. Fast forward to today... submitted same claim info back in March of 2010 as the condition worsened, listed the exact same conditions that have been ongoing and recorded for nearly 20 years... they changed the rating from 10% to 80%. Shouldn't they have done this from the beginning? Is this a CUE????

Something is missing here! Did you also submitt evidence that the condition had worsened in March 2010? Was it based on a new C&P exam. Was there new medical evidence included (i.e., medical records post service)? A CUE only considers the medical evidence that was of record at the time of the initial decision.

[Berta]

Did they use the same diagnostic code in 2010 as they did in the 2006 claim?

That is quite a jump from 10 to 80% in four years for the exct same disability.

Can you scan and attach here a copy of the 2006 10% award and their reasons ans bases? (Cover the personal stuff)

Are you employed?

Have you looked into the CRSC CRPD stuff?

. "was only awarded 10% because the VA stated the trigeminal nerve was not paralyzed..". appealed, denied. Fast forward to today... submitted same claim info back in March

Is there medical evidence to support that the nerve was Not paralyzed?

Is there medical evidence now to say it IS now paralyzed?

I am not familiar with this condition but was there a significant change when the nerve did become paralysed?

That is what might have warranted the 80% in 2010 but not in 2006.

What medical tests did they give you to determine the older rating and the more recent rating?

[Deacon 2011]

Thanks Berta,

I will respond this evening with the comparison and codes from the 2006 claim vs. the 2010 claim.

I am no longer employed, due to complications, my family and I decided that it would be best for me to resign (Dec 2010) for the benefit of my heath and their sanity.

Read up on the CRPD stuff last night, still dont understand, despite my deployments, I dont have any listed combat related injuries

No medical evidence to support the nerve being paralyzed/not paralyzed

During the 2006 C&P exam, all they did was review my active duty medical records and perform a few "pricking" test to check for responsiveness of the nerve, all of the secondary conditions that existed then still exist but only worse hwever... the examiners notesindicat the the reson that only 10% was granted was due to the nerve not being paralyzed... with the current ratingthere is no mention of this, whether positive or negative.

Did they use the same diagnostic code in 2010 as they did in the 2006 claim?

That is quite a jump from 10 to 80% in four years for the exct same disability.

Can you scan and attach here a copy of the 2006 10% award and their reasons ans bases? (Cover the personal stuff)

Are you employed?

Have you looked into the CRSC CRPD stuff?

. "was only awarded 10% because the VA stated the trigeminal nerve was not paralyzed..". appealed, denied. Fast forward to today... submitted same claim info back in March

Is there medical evidence to support that the nerve was Not paralyzed?

Is there medical evidence now to say it IS now paralyzed?

I am not familiar with this condition but was there a significant change when the nerve did become paralysed?

That is what might have warranted the 80% in 2010 but not in 2006.

What medical tests did they give you to determine the older rating and the more recent rating?

[john999]

If you could find some evidence they ignored in the original decision that would have justified 80% then you might have something. I would go over the evidence the VA used in their rating very carefully to see if they left anything out of the rating decision.

[rakkwarrior]

It seems that though you may need a medial opinion relating all of the various reports into a consistent disability picture.

"It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history."(38 C.F.R. 4.1) Whereas, 38 C.F.R. 4.2 states, "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." However, the responsibility of the Rating Specialist is not to opine as to medical levels of severity on their own if confronted with a competent opinion as to medical opinions from competent medical professionals."

Probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, physician’s knowledge and skill in analyzing data, and medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet.App. 467 (1993). Equally, the [VBA] is :is prohibited from asserting its own unsubstantiated medical opinion, and thus when the [board,VARO] doubts weight or credibility of medical evidence offered by the veteran, the BVA should cite or seek advisory opinion or recognize medical treatises in its decision that clearly support its ultimate conclusion. Guerrieri v. Brown, 4 Vet.App. 467 (1993). In the worst case scenario the VA could seek a secondary advisory opinion regarding the medical evidence but if properly done, this would only conclude the same results.

The cited precedent does not only serve for service connection but also claims for increased ratings, if the examiners knows the exact criteria for the "staged" evaluations under 38 C.F.R. Part 4 for your specific disorder under it's relevant DC code. Medical opinions as to severity are powerful, specifically when they encompass a period of years based on contemporaneous review of the record. The Court held in Massey v. Brown, "Consideration of factors which are wholly outside of the rating criteria provided by regulations for rating of disorders is error as a matter of law; thus, when adjudicating or rating cases, the agency cannot use a standard which exceeds that found in the regulation." Massey v. Brown, 7 Vet.App. 204 (1994).

How would we do this, if it were a PTSD evaluation rated at 30, which we feel more closely approximates a 50%, we would request a for a physicians review of the medical records citing:

• Whether or not the severity and current level of functioning the veteran experiences due to his PTSD results in reduced reliability and productivity due to such symptoms as:
  
  • • flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

[*]Whether or not the aforementioned cluster of signs and symptoms were evident by a review of all pertinent clinical records from November 2008 through the present.

Kindly provide your medical opinion as to whether our client symptoms met the current level of severity, over the time period indicated above. Please substantiate or reconcile your medical opinion with medical reasoning based on a review of all available records to include service medical and personnel records where appropriate.

This would help build the case and refute the thoroughness and purposeful review of the decision maker, especially under judicial review from a VLJ. Eqally, this is a much easier method to prosecute than alleging an CUE. Essentially, you would have to Rate the decision for them, and prove it was not a difference of opinion but a legal error on their part, CUE's are only usually won with disorders which are not subjective to rate, like a orthopedic issue, or a Hearing Loss eval.