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

[Berta]

As Carlie stated here:

"If SC gets granted for your lumbar condition, due to these newly discovered medical records,

that were not considered in the prior decision - it would not fall under a CUE, it would fall

under 38 CFR 3.156c.

http://ecfr.gpoacces...1.60.65&idno=38"

I sure hope your lawyer aggressively brought this regulation up and had the medical evidence you mentioned to get into the record of the hearing.

Also you posted:

"Now I found a C&P exam where the examiner blatantly changed or left out information. It was for my lumbar spine and the Radiologist impression stated : 1. Mild lumbar spondylosis 2. Facet Joint arthrosis. The examiner wrote: Mild spondylosis. These people are criminals! She made sure to leave out the word LUMBAR. She was so screwed up she put that it was my cervial spine. "

I hope this too was raised at the DRO review.

Was the "mild lumbar spondylosis" fully associated as secondary to the inservice injury with any other medical evidence such as an IMO?

Did they completely disregard the Radiology report and did the lawyer argue that point?

What was the specific reason they CUed the older award?

Edited July 15, 2012 by Berta

[mags1023]

Hi Berta, sorry it has been so long but I was away on vacation. I'm not sure where the disconnect came in, but the CUE had nothing to do with my lumbar spine. The VA called a CUE on itself on a decision they made to grant me Cervical Radiculopathy. They said it was pyramiding with my Carpal Tunnel Syndrome, because it basically caused the same symptom (weakness in my hands). The DRO, who was the same guy who made the original decision to grant Cerv Rad and then someone pulled him aside and said, hey you made a mistake on this, so he sent me the notice to reduce due to CUE. My lawyer made it perfectly clear to them that they can't just change their minds and say they made a mistake. That is not CUE and it does not meet the burden of CUE. Of course, this DRO can decide whatever he wants and I will have to fight it. I'm hoping he rules correctly and withdrawals the reduction proposal. Thanks,

[carlie]

Separate diagnostic codes identify the various disabilities

and the criteria for specific ratings. If two disability

evaluations are potentially applicable, the higher evaluation

will be assigned to the disability picture that more nearly

approximates the criteria required for that rating.

Otherwise, the lower rating will be assigned. 38 C.F.R. §

4.7. Any reasonable doubt regarding the degree of disability

will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

However, the evaluation of the same disability under various

diagnoses, known as pyramiding, is to be avoided. 38 C.F.R.

§ 4.14 (2007).

http://www.benefits....ms/M21_1MR1.asp

Chapter 5 - Appeals

Section C - Decision Review Office (DRO) Review Process

11. DRO Duties and Responsibilities,

f. Acting DRO

When the DRO is temporarily absent or disqualified because he/she participated in the decision under review, the VSCM of the RO where the hearing is scheduled appoints an acting DRO.

The acting DRO

• shall have considerable understanding of the issue that is the subject of the hearing
  
  
• shall not be less than a GS-12, except in extraordinary circumstances, and
  
  
• cannot have participated in the decision being reviewed.
  
  
  
  
  a. DRO Jurisdiction Over Appellant Issues
  Once the DRO assumes jurisdiction of a case, he/she works in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case. The appeal remains with the DRO until it is forwarded to BVA.
  
  The DRO has jurisdiction over a rating issue that the appellant raises during the hearing provided the issue was part of the rating decision being appealed that is the subject of the formal hearing or informal conference.
  
  Notes: The DRO has
  • de novo review jurisdiction only over appeals for benefits governed by
    
    

    • 38 CFR Part 3, and
      
      
    • 38 CFR Part 4
      

    [*]limited jurisdiction over a rating issue raised during an informal conference or formal hearing, provided the issue was part of the rating decision that is the subject of the hearing, and

    [*]no jurisdiction over an appeal on a rating decision made by the DRO him/herself.

[mags1023]

Wow, thanks Carlie. That is very eye opening. I will forward this to my lawyer. If the decision comes back in my favor, I don't need to do anything, but if he decides against me then I will definitely use this against them.

[carlie]

mags,

Your lawyer should already be well versed in my last post.

It's VA 101, in regards to DRO procedure and authority.

carlie