tdiu Va Proposed Decrease Due To Cue

[mags1023]

I have 2 issues on appeal since 2008 and an NOD/DRO review on my claim for headaches from last year, so what do I get in the mail yesterday? A letter from the VA stating that they made a CUE when they granted me Cervical Radiculopathy last year. It looks like they are saying it is basically the same thing as my Carpal Tunnel Syndrome! It says that it considers the Cervical Radiculopathy as pyramiding on my Carpal Tunnel. I think they are saying my symptoms are the same. This is redicilous! I have pain and numbness in my shoulders that radiate down my arms. I have neck pain and headaches from it. I don't think that would be caused by Carpal Tunnel.

I know I need to request a hearing, but can I send an NOD in at the same time disagreeing with their findings?? Some rating specialist probably got an end of year bonus for this by trying to cheat me out of 10%. It says my rating will decrease from 90% to 80%. I feel like Joe Fraizer after going 15 rounds with Muhammad Ali! They are beating me down. I want to keep working, because I know if I stop going to work and sit around all day, my depression is going to get worse and worse. But, I am thinking about filing for TDIU. Any thoughts are appreciated.

s/Mags1023

[mags1023]

The VA must be screwing with me. I got home yesterday and had another envelope with 3 decisions from the DRO denied, denied denied! I guess s/he cleared off their desk this week to start 2012 fresh. They really make this an us against them environment and I am ready to fight till the end! I am sure I will be asking the hadit experts for their help once I sort through the 100 or so pages.

[mags1023]

I took the time to carefully read the letter that proposes to reduce my cervical radiculopathy or actually combine it with my Carpal Tunnel Syndrome. Here are some of the important paragraphs. Thanks in advance if you take the time to read and comment.

The VA states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

But earlier in the decision letter it clearly states that results of an examination on Dec 12, 2010 I complained of paresthesia/dysesthesia episodic decrease sensation extending down both upper extremities along radial aspects. It also goes on to say shooting pain along radial aspect. My detailed VA reflex examination noted right and left hypoactivity in the biceps (C5-6) and pinprick. The examiner opined that opined that your secondary bilateral cervical radiculopathy is at atleast as likely as not caused by or a result of your service connected degenerative spine condition. The examiners rationale indicated that your VA record notes multiple complaints of cervical spine radicular symptoms since 9/13/2009. Radiographic findings also indicated increased degenerative changes as compared to studies one year prior. However only C3-4 shows neuroforaminal encroachment, but the examiner noted that you reported radicular symptoms travel along C-5 and C-6. The service connected bilateral median nerve paralysis is the apparent cause of the episodic weakness, pain and decrease in the hands .

That is where he comes to his decision and states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

Like JBasser and Scsrewed said, how can this guy make these decisions/assumptions?? I guess I now need to get an IMO contradicting what he says since he said it even if he doesn’t have the authority to make this determination?

[Capt.]

Hello All,

EXACTLY,,,,,,,, Jbasser and SScrewed said, The rater is not able to determine medical etiology or symptoms. Just as you are a layman and cannot make such determinations. So is the rater. It will take an IMO to squash his report/decision/SOC and I would make sure the VA is noted in the appeal/NOD that it is not allowed to make such decisions. They are counting on you not appealing the decision and that you are just fed up with messing with the VA. If you choose this route then the decision will stand.

This raters decision is so stupid as to say that the nerves in your spine do not end up in the hands as to the way it is worded. The rater said that the nerves in your hand are a result of the carpal tunnel, not related to the spine issues. STUPID......

"The service connected bilateral median nerve paralysis is the apparent cause of the episodic weakness, pain and decrease in the hands ."

"That is where he comes to his decision and states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome."

Now ,,, I would like to bring up some other issues.

Have you been to neurology and been thru Needle Nerve Conductivity and EMG test?

My reasoning here is you are having nerve issues and the VA rates Periperal Neuropathy which is very common to a spine injury . I have PN from chemical exposure so I know what the VA tries to Service Connect with Diabetes II and Agent Orange Presumptive. However you can still have PN without Diabetes, because of the Spine issues. If you can get your testing done and it may be possible to identify Peripheral Neuropathy with the Spine Issue relationship. Carpal Tunnel is what the VA tried to pull on me but it did not fly with the testing and the opinions , even VA Neurologist as well as private Doctors opined thru the testing I have asked you about. So now there is the possibility of filing a claim for Peripheral Neuropathy (if tested and diagnosed)which is what I believe the VA has totally overlooked. They want the Carpal Tunnel because of the scheduler. You may loose the Carpal tunnel claim issue anyway and then have the reduction with nothing to fall back on. If they misdiagnosed you and also give you a faulty decision then you could really hammer them with a new claim for Peripheral Neuropathy of both uppers(rateable at 30%) and may be able to appeal the Carpal Issue and Spine Issue to boot.

I am also curious as to if you have Peripheral Neuropathy and if you have it in your LEGS and FEET. I have severe PN in ALL 4 extremities and the doctors told me that a spine injury or problem can also cause this. Which is what you are dealing with.

Have you had trouble with numbness, pain, burning in your feet? Have you been tested by Neurology with the same test above I listed? It is very likely that you could end up with yet another claim for your feet and legs with PN . And this might be secondary to your Spine issues.

I see alot of possibilities with your claim. It could very well be something the VA never should have gotten into. Now they have opened a can of worms and it could be to your benefit but it will take some testing , some GOOD SOLID IMO's which are not a big deal other than time and some cost. But it could end up putting the Genie back in the bottle so to speak.

I believe your faulty decision is certainly going to be won by you with the IMO and resultive NOD/appeal on this Carpal Tunnel/Spine Issue. I also see you maybe sending the VA a nice thank you card for spotting a possible other claim and for making a Medical decision that was ridiculous and faulty , yet even illegal. And maybe award you for some new claims that might get diagnosed and filed and AWARDED.

I am with Bronco on the CUE ....it was illegal and resulted in a faulty decision. You may have a CUE of your own if the VA keeps making so many mistakes. How many times does the VA CUE itself without being pushed by the Veteran. The rater really stepped over his job title again. This might be worth writing the Service Manager and then copying to OIG. I am sure they will be really happy to try and answer any questions as to how this one got to where it did.

Sscrewed said it is a rating fault and yes it is but I believe the other things I brought up are going to need an IMO and an IMO could be added to the report to compel the evidence to be in favor of the Veteran. (38 CFR 3.102) . I think you still may be able to CUE the VA on the faulty rating mistake.

ALSO BRONCO posted the topic from yesterday "NVLSP Common VA Errors in Increase decisions" might be looked at to give you some more ideas.

As always though the Veteran can never assume anything with the VA but he must remain diligent and NEVER GIVE UP. Happy New Year. God Bless, C.C.

Edited January 2, 2012 by Capt.Contaminate

[Gulfvet45]

You headaches are an easy case to win, I have done in your case, they are a 2ndry to your back/neuropathy. Make sure it is done under the right DC. off the top I think DC8100.

Also get tested for small fiber neuropathy if you get problems on legs and the EMK does not pick it up. They have some new test that for it.

As your neuropathy gets worst, it will cause problems with your GI track. these will become 2ndry. Many GW vets have these problems due to toxins from the Gulf War.

I took the time to carefully read the letter that proposes to reduce my cervical radiculopathy or actually combine it with my Carpal Tunnel Syndrome. Here are some of the important paragraphs. Thanks in advance if you take the time to read and comment.

The VA states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

But earlier in the decision letter it clearly states that results of an examination on Dec 12, 2010 I complained of paresthesia/dysesthesia episodic decrease sensation extending down both upper extremities along radial aspects. It also goes on to say shooting pain along radial aspect. My detailed VA reflex examination noted right and left hypoactivity in the biceps (C5-6) and pinprick. The examiner opined that opined that your secondary bilateral cervical radiculopathy is at atleast as likely as not caused by or a result of your service connected degenerative spine condition. The examiners rationale indicated that your VA record notes multiple complaints of cervical spine radicular symptoms since 9/13/2009. Radiographic findings also indicated increased degenerative changes as compared to studies one year prior. However only C3-4 shows neuroforaminal encroachment, but the examiner noted that you reported radicular symptoms travel along C-5 and C-6. The service connected bilateral median nerve paralysis is the apparent cause of the episodic weakness, pain and decrease in the hands .

That is where he comes to his decision and states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

Like JBasser and Scsrewed said, how can this guy make these decisions/assumptions?? I guess I now need to get an IMO contradicting what he says since he said it even if he doesn't have the authority to make this determination?

[broncovet]

The VA rater is making a medical determination, that is, that carperal tunnel is the same as a weakness in grip. Only a medical professional can make such a determination, not a rater, not a Veteran, and not a judge.

This is error (on the part of the VA).

For other common VA errors, read this:

http://www.purpleheart.org/ServiceProgram/Training2011/T-4%20%20VA%20Errors%20in%20Claims%20for%20Increase%203.2011.pdf

For example, this may apply to you, mags:

Functional Loss Must be Compensated

z VA regulations require that a veteran’s functional loss be

adequately measured, but VA often declined to compensate a

veteran for additional loss of motion

z VA thinking - compensation for functional loss was either

pyramiding or would not be in keeping with the diagnostic

codes

z This ignored section 4.40, and 4.45

– Section 4.40 provides functional loss of motion is as important as

actual loss of motion, weakness and pain affect person’s range of

motion

– Section 4.45 examiners must test for: less movement than normal,

more movement than normal, weakened movement, excess

fatigability, incoordination, and pain with movement© NVLSP 2011

Functional Loss Must be Compensated (cont’d)

z Limitation of motion caused by pain is not included as part of

the diagnostic codes

z VA examination need to include all of the consideration of

sections 4.40 and 4.45.

z Practical applications:

– In every joint rating claim, look carefully to see whether the VA applied

DeLuca and sections 4.40 and 4.45.

z Ex. - Veteran can flex his knee up to 100 degrees, but pain at 60

degrees, perhaps he should be evaluated as if his flexion is limited to

60 degrees.

z Ex. – Examiner notes movement up to 90 degrees, “with pain,” without

further explanation claim should be sent back for clarifying

examination.

[halos2]

You state " I took the time to carefully read the letter that proposes to reduce my..." Some years back I had put in for an increase and some dingbat rater decided she would change things around from what my SMR documented as dates and who said what and when things were noted and injury and physician statements to suit her "own mind" but not factual...and I got my letter to propose to reduce my rating...(mind you this was a few months after they claimed I was deceased and I had to prove I was alive!!) No cue written on my papers just "proposal to reduce......"

I immediately put in a NOD and requested a personal hearing with a New DRO and Denovo review...took 7 months to get the hearing (make sure you request transcript of hearing too) and another 7+ months to get my results...The VA cued itself and stated basically they made an error in trying to propose to reduce and that original award  was too low of 30% it should have been 50% for this claim...they denied my other claim which was ignored with the first go around...

When I got more of the records during the waiting I could not believe how the rater who made this big fat mistake ignored my new claim and saw where the deceased thing happened and she switched dates around from the factual written dates and treatment and all...What a piece of crap, and her bogus notes are all in my files too. Name included!!

BTW I had 30 days to file my NOD to preserve my $ till they made a new decision post route I chose. They will drop your rating down in a heartbeat if they think they can get by with this!! 30 days!

Get your NOD filed and choose your method you wish to follow, as I prefer face to face as I think the person can put your face in the claim process and the evidence presented can be related to the emotion expressed and tone too. I had some IMO's I handed in too for the other claim that was denied then too...but I could sense the new DRO was totally on my side when I PROVED the other idiot did indeed change my record dates/times/occurance's/evidence to suit herself...

Good luck with your claim.

You can take your spouse and VSO in with you too...if you use a lawyer that person can go in with you also. It is very informal, and they let you take a break if needed when you are presenting your evidence. They set it up for 1 hour and I called ahead and requested 2, as I had evidence for the old one and the new one to present. Be organized with your evidence!

I took the time to carefully read the letter that proposes to reduce my cervical radiculopathy or actually combine it with my Carpal Tunnel Syndrome. Here are some of the important paragraphs. Thanks in advance if you take the time to read and comment.

The VA states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

But earlier in the decision letter it clearly states that results of an examination on Dec 12, 2010 I complained of paresthesia/dysesthesia episodic decrease sensation extending down both upper extremities along radial aspects. It also goes on to say shooting pain along radial aspect. My detailed VA reflex examination noted right and left hypoactivity in the biceps (C5-6) and pinprick. The examiner opined that opined that your secondary bilateral cervical radiculopathy is at atleast as likely as not caused by or a result of your service connected degenerative spine condition. The examiners rationale indicated that your VA record notes multiple complaints of cervical spine radicular symptoms since 9/13/2009. Radiographic findings also indicated increased degenerative changes as compared to studies one year prior. However only C3-4 shows neuroforaminal encroachment, but the examiner noted that you reported radicular symptoms travel along C-5 and C-6. The service connected bilateral median nerve paralysis is the apparent cause of the episodic weakness, pain and decrease in the hands .

That is where he comes to his decision and states: This assessment clearly shows that the end disability results in weakness and decrease in grip (incomplete paralysis) of your hand which is basically the same result as your service connected carpal tunnel syndrome.

Like JBasser and Scsrewed said, how can this guy make these decisions/assumptions?? I guess I now need to get an IMO contradicting what he says since he said it even if he doesn't have the authority to make this determination?

Edited January 3, 2012 by halos2