Is It Cue For Va To Fail To Cite 3.344 (5 Year Standards?)

[AF1982]

Is it CUE for VA to fail to cite 3.344 (5 year higher standards) and instead only cite 3.105(e) in a proposal to reduce?

I just battled over a year and won where they tried to sever me entirely.

Now they have just came back (a little bit angry maybe?) trying to reduce my 60% status knee replacement (replaced twice) with a 30%.

Don't they also have a do a complete exam (and not just a couple of select body parts?)

VA also didn't mention my secondary claims of lower back, left hip and now what was my good knee (right knee). I thought they had to do a review of my entire medical condition (maybe Brown v. Brown and in relation to the 5-year stabilization requirements 3.344.

They didn't do a complete or even accurate c&p (the report left out important information, which luckily my wife documented/recorded and so we can prove).

I think the RO is a little upset for losing the CUE against me.

I appreciate any feedback. Thanks guys and gals!

[john999]

I don't think it is a CUE because it is not final yet, but the VA must look at your entire disability picture and determine that you have clearly and definitely improved. The burden is on them when they propose to reduce you. Are you TDIU?

[carlie]

I think the RO is a little upset for losing the CUE against me.

Can you scan and post an exact copy of the CUE - without your personal info.

like name, claim #, address, etc . . .

[Cynthia80]

@AF1982 how did you win your Sever claim with the VA did you have a Lawyer? the VA is trying to do that to my husband he had a hearing today for the VA to hear his side they didnt even go thru with it because his unit back in 2001 did his L.O.D investigation wrong so VA is going to sever his comp six months from now based on his L.O.D investigation being done wrong by his unit...we also was told that he can go and fill out a DD 149 to summit to the army to get his L.O.D done right..im thinking now is the time to get a lawyer

[broncovet]

Cue has to be an "outcome determinative" error. Things like VCAA notice violations are not outcome determinative. You have to go back and look for an error that would be outciome detrminative, and a VA failure to cite this on its reasons and bases is not outcome determinative. You could get the benefits or be denied them the same whether or not they cited a particular regulation.

The CAVC has said, to the effect, that the Board merely citing a regulation in its decision is no guarntee that the Board decision complied with the applicable regulation.

[broncovet]

It is not enough that the Ro or BVA made an error to be CUE. There is much on "harmless error"...the courts recognize the VA often commits "harmless error" that does not determine the outcome.

[carlie]

Is it CUE for VA to fail to cite 3.344 (5 year higher standards) and instead only cite 3.105(e) in a proposal to reduce?

No, failure to "cite" would not be a CUE.

I just battled over a year and won where they tried to sever me entirely.

Now they have just came back (a little bit angry maybe?) trying to reduce my 60% status knee replacement (replaced twice) with a 30%.

The reduction will solely consider the CURRENT level of disability evaluation per the CURRENT medical

evidence of record. I posted the criteria below.

Don't they also have a do a complete exam (and not just a couple of select body parts?)

They will examine the disability that the reduction has been proposed for.

VA also didn't mention my secondary claims of lower back, left hip and now what was my good knee (right knee). I thought they had to do a review of my entire medical condition (maybe Brown v. Brown and in relation to the 5-year stabilization requirements 3.344.

They didn't do a complete or even accurate c&p (the report left out important information, which luckily my wife documented/recorded and so we can prove).

The claimant has no legal right or authority to record a C&P examination.

I think the RO is a little upset for losing the CUE against me.

I doubt it.

I appreciate any feedback. Thanks guys and gals!

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=360712cedff9c9b61232333266bbd33d&rgn=div8&view=text&node=38:1.0.1.1.5.2.98.26&idno=38

5055 Knee replacement (prosthesis). Prosthetic replacement of knee joint:

For 1 year following implantation of prosthesis

100

With chronic residuals consisting of severe painful motion or weakness in the affected extremity

60

With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262.

Minimum rating

30

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=360712cedff9c9b61232333266bbd33d&rgn=div8&view=text&node=38:1.0.1.1.4.2.67.143&idno=38

§ 3.344 Stabilization of disability evaluations.

© Disabilities which are likely to improve.

The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve.

Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

* * * * * http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=360712cedff9c9b61232333266bbd33d&rgn=div8&view=text&node=38:1.0.1.1.4.1.59.49&idno=38 § 3.105 Revision of decisions

(e) Reduction in evaluation—compensation.

Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made,

a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.

The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.

Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period,

final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

A BVA case for study:

http://www.va.gov/vetapp11/Files1/1101219.txt

"The duty to notify under the VCAA is triggered by the receipt of

a claim. In the case of a reduction, there has been no claim,

and the duty is therefore not applicable.  Moreover, the Board 
notes that the regulation governing reduction, 38 C.F.R. 
§ 3.105(e), contains its own notice provisions and procedures.  
The VCAA is not applicable where the law governing the matter in 
question does so.  Barger v. Principi, 16 Vet. App. 132 (2002).

The VA regulation at 38 C.F.R. § 3.105 provides that 
where reduction in evaluation of a service-connected disability is 
considered warranted and the lower evaluation would result in a 
reduction or discontinuance of compensation payments currently 
being made, a rating proposing the reduction or discontinuance is 
to be prepared setting forth all material facts and reasons.  
38 C.F.R. § 3.105(e).

The Board finds that VA has complied with the notice procedures 
of § 3.105(e), and has provided adequate notice even under the 
VCAA if it were applicable.  The July 2005 notification letter to 
the Veteran and the accompanying proposed rating decision 
detailed the proposed actions, provided notice of the applicable 
evaluation criteria, described the types of evidence which would 
be helpful in avoiding the proposed reduction, and informed him 
of the right to request a hearing on the matter."