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


AF1982

Question

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!

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  • HadIt.com Elder

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?

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@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

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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.

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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."
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  • HadIt.com Elder

Phrases like "outcome determinitive" and "undebatable" are things that the VA wishes to be objective criteria but they are subjective according to whom is looking at the evidence or law. For instance, if you submit an IMO that cost you $3000 and the VA totally disregards this IMO and makes their decision solely based on evidence from a QTC exam I would say that is an undebatable error, and would be outcome determinitive(depending on the evidence and its quality and the number of PH.D.'s and MD's your IMO has to his/her name).

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I filed a claim for lower back in 2006 after having to leave a job because of it, I was only separated from the service 6 months. I missed the c&p exam(personal) and got denied in dec 2006. Back pain continued but I was not even sure I was going to go through with the claim, I was just anxious to get to work again. Feb 2008 I go va hospital to treat a fractured foot and was asked as routine if i had any other problems, i replied well I have always had this lb pain and general burning of most of my back, I had no intentions to reopen my claim. They did xrays at the va and found arthritis. I reopened the claim had a c&p and was denied for non continuity of treatment since departure from service and lack of chronicity during service ,I appealed but my IMO did'nt write a rational he just filled out a short connection questionaire indicating most likely than not, va sited his lack of ability to review smr's although I showed him their denial letter stating I was diagnosed with lumbago in service, so my IMO was aware of an inservice diagnosis, anyway

I returned to the original denial letter from the first claim that was subject to new and material evidence in order to be reopened. This is where I realize how cruel our fellow humans can be. My original denial letter for the first claim that I submitted 6 months after service stated clearly that injury in service was chronic and the examination was to establish risiduals (Presumptive service connection), so thechically all i had to do was show up and get at least 0% but when the case was reopened in 2008 and denied the c&p examiner said the only diagnosis i ever had was ddd at the va and he completely ignored my msr lumbar diagnosis and episodes showing clear chronicity. to make matters worst he specifically stated that there was no chronicity in msr' s when the first claim says chronic in service injury. Thats not it, the first claim was denied because I missed a c&p to establish residuals for an obvious chronic inservice injury, instead of using the c&p examiners diagnosis of arthritis as the new and material evidence used to substantiate the claim, they said that signing vcaa letter was new and material evidence because of intent to attend the c&p and they reopened the claim, when in reality I already had a vcaa in the original claim so thats redundant evidence, showing up to the c&p with arthritis, i think that would be all I need and continuity of treatment is not applicable because my original case is based on presumption awaiting c&p for residuals of something manifested within a certain time period. On my second appeal they just totally removed the original denial letter showing presumption out of the evidence. Did mri and found two herniated discs, ddd, scoliosis. My Va doc works at the same va facility with the c&p doc and he wrote me a letter confirming sc and filled out a more likely than not questionare. I have a buddy statement on my way from my squad leader who encouraged me to return to sick call, so she was in a way directly involved, also working on a letter from a supervisor when i left because of the inservice injury, I figure I can beat them anyway because the truth is on my side, the case is at DRO, I also added Iu and have a diagnosis for mood disorder with depressive features due to ddd and herniated disc,scoliosis. Do I have a cue, should I wait for dro to decide on continuity of treatment and depend on the new va docs IMO nexus to tip the scale in my favor with the DRO, what can I do with these obvious errors. there is a couple more I did nt mention

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"Do I have a cue, should I wait for dro to decide on continuity of
treatment and depend on the new va docs IMO nexus to tip the scale in my
favor with the DRO, what can I do with these obvious errors. there is a
couple more I did nt mention"

No Not anywhere near at this point.

Do you mean you have requested a DRO hearing?

Can you possibly scan and attach here (cover identifying stuff) the SOC tht prompted the DRO request? Please include the Evidence list they used.

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Thanks Berta the case has been at DRO since oct. 2012 also i could nt figure out how to attach the documents, I will post as soon as i figure it out

When you want to post - please start a new topic under the forum it relates to.

Tis way the OP's topic doesn't get over run.

Thanks

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