tinnitus Fixing Previous Claims And Appeals Due To Inadequate C&p Exams And Cues

[elcamino_77us]

I was discharged Nov1995 and Finally got my BVA decided in the Fall of 2008. My VSO was The American Legion and at the end they sent me a letter stating that they had help me as much as possible.

I had surgery on my right knee in Aug 2012 and decided that would be a good time to file for an increase. After going through the Georgia Dept of Veterans Services and filing my claim, I began researching here and in other fourms.

What I found amazes me. Yes,The American Legion did a good job but at the same time, they really blew it.

In making their decission, The BVA relied on information from an inadequate C&P Exam. Plus, they (The BVA) changes the wording of the C&P examiner from within to without:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability.”

To:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but without any neurological disability.”

This completely changed the meaning of the examiners statement. The word “within” used in this particular situation meant to include or encompass all of the neurological disability, in this case bilateral spinal stenosis to the L/S strain and degenerative arthritis.

The BVA decission also stated in conjuction with my Left Knee Claim:

"appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)."

Last week, I had surgery on my Left Knee. I do not have as of yet, a post-op report from the doctor. According to my wife, the doctor stated that most of the damage in my left knee was the result of an old injury. The only injury that I have had to my left knee was while I was stationed in the Marine Corps.

My C&P Exam of 1996 did not include Deluca, My C-File was not view, The Examiner stated to me that he had looked at my x-rays and could not find anything wrong. At the end of the exam, he sent me for x-rays as he stated he didn't have any. All of my complaints of pain or my statements concerning military treatments were ignored. The doctor basicly stated I was a quack.

I have also found the medical reports sent in 3 1/2 months after my discharge and a year later with a diagnosis of dengenerative Arthritis of the Spine were ingored.

I believe there was a CUE committed as well with my first Audio C&P as I mentioned I had Tinnitus along with my hearing loss. I was service connected for the Hearing Loss but as I didn't know the Tinnitus was seperate, I wasn't service connected for that until 2010. According to what I can find, that would fall under Failure to Fully & Sympathetically Develop Claim.

This is just the tip of the ice burge.

OK, After reading all of that, can anyone give me some good advice.

I'm not sure how to handle the BVA and both their usal of a C&P exam that was I believed, previously considered inadequate or their deliberate changing of the examiners wording to deny an increase.

What did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?

Is my statement concerning the Tinnitus being a CUE, correct?

Thanks

Bill

Edited May 12, 2014 by elcamino_77us

[elcamino_77us]

Evening, not sure if I need to start another thread, however this question goes along with my previous post.

Going back to one of the statements that was miss-quoted by the rater:

"There has been some progression in L4/5 to mild to moderate central stenosis. This Vet has certainly had further changes in the thoracic, lumbar, sacral spine that is attributed to futher injury in the 2 mentioned MVA's which may still have legal action pending there. In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability."

Again, the BVA had instead "without any neurological disability."

I believe the this was a deliberate act not a mere mistake. In the paperwork I found a copy in my C-File that had the word "without" written as if to be questioning the statement made by the PA who performed my C&P Exam.

According to some of the research I've found on here, this would apply unless I'm mistaking.

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS

AFFAIRS PART 4--SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A--General Policy in Rating

Sec. 4.1 Essentials of evaluative rating. It states: both in the examination and in the evaluation of disability, that each

disability be viewed in relation to its history. Sec. 4.2 Interpretation of examination reports. 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. Each disability must be considered from the point of view of

the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the

report does not contain sufficient detail, it is incumbent upon the rating board to return the report as

inadequate for evaluation purposes.

This tells me that the Rater should have sent the C&P Report back to the PA for clarification, not trying to guessamate what was meant by the PA's statement.

Also, I believe that Broncovet was right on the money with his "Cushman Vs Shinseki." It does fit

Thanks Broncovet along with Bertha and everyone else. I've still got a lot of reading, learning, and note taking to do here. Please bear with me over the next few months as I piece this together.

Billy

Edited April 2, 2014 by elcamino_77us

[john999]

You are lucky the possible CUE happened after 1990. I tried to use Cushman V Shinseki for excluding my IMO from my rating in 1973. Is there a difference between excluding and altering evidence? The VA thinks so. Because my CUE happened before 1990 I cannot prove or disprove my evidence was excluded even when the BVA admits it. This is VA justice.

[Berta]

Again, the BVA had instead "without any neurological disability."

Sorry I am pressed for time and dont have time to read all this too well

Can you tell me the exact medical diagnosis for the name of the neurological disability you have?

Neuro disabilities can often be a syndrome term as well as a different type of medical term.

Did you claim it that way in the past? ( as secondary?) exactly as it is diagnosed in your records?

I am not doubting what you said at all...I just don't see what it was it specifically diagnosed as here.....

[elcamino_77us]

Thanks Berta,

I filed my original claim Nov 1995 and In 1996 the VA ruled 0% for a Back Strain. I promptly appealed it for an increase. My VSO (American Legion, contracted out to the Georgia Dept of Veterans Affairs) kept fighting for a increase for my back claim. As far as I know, there never was any actual claim for a secondary condition. My chief complaints concerning my back were sharp pains down both legs and eventually partial numbness in both legs. This was supported by numerous medical reports and I even testified in front of a Board concerning these conditions. After a few C&P Exams, remands and appeals, I received the BVA of 2008 which was based on my 2006 C&P Exam. The Doctor listed SOME of the neurological conditions I was having beginning while still on Active Duty in 1994 up to the present. The way I read it, she concluded that I had a neurological condition, but stopped short of an actual diagnosis. I filed for an Increase concerning my back condition in 2012. The VA scheduled a C&P Exam and during the course of that exam the Doctor asked me about several of my previous conditions relating from my military service. One of those conditions was the sharp pains down both legs and eventually partial numbness in both legs. Using the DBQ, the Doctor in turn gave me a bilateral diagnosis of: Lumbar Radiculopathy 724.4 1-3-2012 as a secondary.

After going through my C-File which I had requested, one copy of the 2006 C&P Exams show that the miss-quote was deliberate as they had wrote "without" on the report as if trying to understand the intent of the 2006 C&P Examiners statement. As stated above, the rater also changed another report. Dr.Choi wrote, “He does clearly have median nerve distribution numbness symptomatically.” But the BVA changed it to: "He did not clearly have any median nerve distribution numbness symptomatically." When I tried to get the VA to CUE themselves, they stated that this statement referred to a diagnosis of "carpel tunnel syndrome." However, had the VA read the WHOLE Doctors Record, they would have found that the Dr. had changed his diagnosis to Degenerative Arthritis of the LUMBOSACRAL SPINE.

The Rater left out several medical records and statements which my VSO filed a harsh statement against. But that still didn't keep them from excluding them. One of the Medical Records was dated May 6th, 2005, from a Chiropractor which had a actual diagnosis concerning my neurological conditions:

To Whom It May Concern,

Mr. Billy Hill has been under my care since 11 /14/01 for a neuromusculoskeletal condition. His primary symptoms of intermittent lower back pain, with frequent right leg radiculopathy, knee pain, and constant right foot hypoaesthesia, have responded with very limited resolution to date. It is my opinion, in view of the lack of improvement seen with the treatment to date and the chronicity of Mr. Hill's lower extremity numbness, and considering the history of knee trauma and the mechanical stresses subjected to the knee and posterior joints of the lower spine as Mr. Hill carried a forty pound Sousaphone in military processional for extended periods, that this condition is permanent and the probability of future resolution is very poor.

From what I can see, there were a couple of mistakes made:

My VSO did not inform me that the neurological conditions I was having, rated a Secondary Condition Claim. (Just one of Several made by my VSO throughout my case.)

The Chiropractor should have included the Left side as well.

The 2006 C&P Examiner failed to list a diagnosis.

The BVA's/Rater's failure to use all of my Medical Evidence.

The BVA's/Rater's failure to send my 2006 C&P Exam back to the Examiner for Clarification. (Which I believe constitutes a CUE.)

The deliberate alteration of two of my Medical Records. (Which I can't see how it doesn't constitutes a CUE.)

Again Thanks Berta!!!

Billy

[Berta]

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp05/Files5/0530230.txt

This appears to be the most recent BVA decision you received :
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files3/0823887.txt
"ORDER

Service connection for a left knee disorder is denied.

A compensable disability rating for a low back disability is
denied for the period from November 13, 1995 to June 23,
2002.

A disability rating of 10 percent for a low back disability
is granted for the period from June 24, 2002 to April 2,
2006, subject to the law and regulations governing the
payment of VA monetary benefits.

A disability rating of 20 percent for a low back disability
is granted as of April 3, 2006, subject to the law and
regulations governing the payment of VA monetary benefits."

This was part of our discussion here in August 2013:

:

"The dismissal of part of the appeal, in my opinion, means just that... the issue (s) dismissed are over.



The remand however....what is the current status of the remand?"





That is a very GOOD question as I have never heard anything back on any kind of remand pending. If that is the case, does that mean that IF I can get the knee service connected this time will they have to go all the way back to my date of discharge???"

-------------------------------------

I think the 2008 BVA decision was the result of the remand.

Did you file a Notice of Appeal with the CAVC on that decision?

I suggest, but you might not thank me for this, to read EVERYTHING in our CUE forum....

Or maybe better yet, get an IMO that covers all conditions you have claimed, and that follows (unlike the other IMOs you had) the IMO criteria here at hadit and re open the past back and knee claims with it, as New and Material Evidence (for higher rating of the back claim if possible) and file anything not previously claimed . as a new claim...the IMO could cover that as well.

The conditions have to be specified with their actual diagnosis.

However:
"FINDINGS OF FACT

1. There is no competent medical evidence showing the
veteran has a left knee disorder that is related to service.

2. From November 13, 1995 to June 23, 2002, the veteran's
service-connected spine disability was not characterized by
slight limitation of motion of the lumbar spine or
lumbosacral strain with characteristic pain on motion.

3. For the period June 24, 2002 to April 2, 2006, the
veteran's service-connected spine disability was
characterized by slight limitation of motion of the lumbar
spine.

4. Beginning April 3, 2006, the veteran's service-connected
spine disability was characterized by moderate limitation of
motion of the lumbar spine.

5. The veteran's service-connected lumbosacral spine
disorder does not presently cause neurological
manifestations."

These are the things that a strong IMO must clarify, as to the full disability picture and a complete diagnosis for each claimed disability (with any and all secondaries claimed) and give a strong medical rationale that could garner a higher rating.

Regarding the left knee:
The BVA stated:

"Without medical evidence
that proves the existence of a current disability, the nexus
requirement has not been met. Grottveit, supra. In the
absence of proof of a present disability there can be no
valid claim. Brammer, supra. "

This could be filed as a New claim,with an IMO that does diagnose a current disability and that has a complete medical rationale warranting service connection.

Then again no one can really predict the outcome of an IMO.

Before I spent thousands for IMOs for my past AO DMII death claim, I knew I could succeed in the claim and the retro would easily absorb the IMO fees, because my evidence was solid and I had ,at that point,researched the documented medical evidence for 2 years, and I spent many hours every week studying Endocrinology.

I assume that last 2008 BVA decision .if not appealed to the CAVC, is the last documentation you have received from the VA.

CUE claims rest on established medical evidence.

A strong IMO might well reveal that the VA did have established medical evidence that could render a better decision, but they did not consider it then.

If an IMO can document, via all the med recs, what the VA knew and when they knew it, then a possible future award could be the basis for a valid CUE claim, filed as a Motion against the BVA decision in 2008.

You stated:
"From what I can see, there were a couple of mistakes made:



My VSO did not inform me that the neurological conditions I was having, rated a Secondary Condition Claim. (Just one of Several made by my VSO throughout my case.)"

VSOs dont go to Medical school. In some cases,however, VSOs, like many of us here, can see a secondary condition potential,in claims here, right away.
But VA doesnt care how obvious many secondarys are.
A secondary condition must be formally claimed , and then a C & P is given to determine if the condition is,in fact, secondary.



"The Chiropractor should have included the Left side as well." if it was part of the C & P exam , Yes....If this was a private chiro, they needed to be directed for an IMO on that.



"The 2006 C&P Examiner failed to list a diagnosis. "

For my AO DMII claim that I mentioned above, the deceased veteran had never been diagnosed with DMII.I proved he had it and my IMOs concurred.

That could however set up a potential CUE claim..(failure to diagnose) .....I refer you to my 2004 CUE claim in the CUE forum that contained no diagnosis of IHD or any type of heart disease.

I proved without an IMO, that the veteran had IHD, it was due to AO, and it was the prime factor of his death.The Nehmer Award.
VA then had to award the CUE claim.

( 3 CUES in one, no diagnostic code or rating for his IHD, improper diagnostic codes for his CVA(1151) and illegal defiance of the SMC mandate.)

The Cue result was an award ,

diagnostic code and rating for the AO IHD, same for the CVA under 1151, and an award for SMC.

retroactive under my 1995 accrued benefits claim.

Successful CUEs rest on estabnlished medical evidence. VA had, for over 6 years, established medical evidence of the IHD...never diagnosed and never treated.


"The BVA's/Rater's failure to use all of my Medical Evidence.

That would be basis for a CUE claim, ONLY if the evidence is compelling and probative.

And ONLY if tjhat evidence would have garnered a ratable level of an award. (manifested altered outcome)

If an IMO reveals, based on past evidence VA had, that a successful decision can be made, then obviously that was compelling and probative evidence that the VA jhad but disregarded in violation ,in a past decision, of 38 CFR 4.6 (and numerous other VA cases as found within the CAVC awards) ( I cite Myler V Derwinski as one of them)

and that sets the stage for a valid CUE claim.





"The BVA's/Rater's failure to send my 2006 C&P Exam back to the Examiner for Clarification. (Which I believe constitutes a CUE.)"

Did you raise this issue at that time?

I asked the BVA to remand my DMII claim,right after it was transferred to the BVA, and they did. It added some time to the decision but the BVA saw the same legal error I had questioned, right away.

The VARO, upon returning the claim,had still not corrected the error but to BVA it was a moot issue then (and I agree) because they awarded anyhow.
It could have been however,a very serious issue because my VCAA rights had been violated.



"The deliberate alteration of two of my Medical Records. (Which I can't see how it doesn't constitutes a CUE.)"

I said my case never had a DMII diagnosis. It took me quite some time to figure out an entry that someone had crossed out.
The entry appeared to be "cf diag", written the same day a neuro had a conversation with my husband and mentioned diabetes to him for the first time..he was still hospitalized with a major stroke....and I could not be sure ,due to his stroke, if he had correctly told me what the doctor said as he had sever memory problems, was sent back to Bath VAMC the next day and didnt know the doctor's name. .. the VA never pursued that by the cf. diag. notation, so we never worried about it......by time of my DMII claim, my husband , a witness to that conversation, had been dead for almost a decade....but .I had another witness....the neuro who made the entry. ( I know now who crossed it out...not him)... and I learned he had left the VA. * months later I found him in private practice .
I already rattled off here the results of finding him.....a 2 sentence IMO in email that BVA gave great weight to as it corroborated my other IMOs when they awarded that claim.

My point ....Alteration of medical evidence can be overcome by IMOs and the documented medical evidence itself.

SOCs or SSOCs, that parse and manipulate medical evidence can also be overcome by strong IMOs.

The IMO doctor needs a copy of the actual C & P exam itself.


Successful CUEs rest on established medical evidence in VA's possession at time of the alleged CUE.

I cannot stress that point enough.

[elcamino_77us]

Did you file a Notice of Appeal with the CAVC on that decision?

No

I suggest, but you might not thank me for this, to read EVERYTHING in our CUE forum....

I may not like it, but I know it’s necessary and I do respect your advice.

However:
"FINDINGS OF FACT

1. There is no competent medical evidence showing the
veteran has a left knee disorder that is related to service.

On September 18, 2012 I re-opened the case on my Left Knee. On November 27, 2013 the VA made a decision. The swaying factor I believe was a statement concerning a knee scope held on July 23, 2013 which reads as follows:

On July 23, 2013 my Left Knee was scoped (Encl 3) and included the following:

OPERATIVE DETAILS: After informed consent was obtained, preoperative antibiotics were given. The patient was taken to operative room in stable condition and underwent general anesthesia without complications. Preoperative time out was completed. Pedal pulses were verified. The left lower extremity was prepped and draped in usual sterile fashion. Tourniquet ischemia. Anteromedial and anterolateral portals were established. Superior pouch was noted to have hemorrhagic synovium and there were no loose bodies. Medial and lateral gutters were free of loose bodies. There was an area of exposed subchondral bone on the anterior medial aspect of the left knee and there is a thicken plica present. This was debrided. The patellofemoral joint noted mild fraying of the superior portion of the patella but areas of full thickness chondral loss and fibrocartilaginous replacement of the Central portion of the femoral trochlea. Abraded chondroplasty of the frayed chondral surface of the patellofemoral joint was completed. Inspection of the medial compartment revealed thinning of the lateral aspect of the medial femoral condyle with fibrillation and fraying and abraded chondroplasty was performed. A macerated tear of the posterior horn of the medial meniscus was then noted and partial medial meniscectomy back to stable rim with combination of baskets and shavers was then completed. Intracondylar notch revealed normal cruciate ligaments. Figure four position allowed visualization of the lateral components revealed normal chondral surfaces and normal lateral meniscus. Hemorrhagic synovium of the medial and lateral gutters and suprapatellar pouch was debrided. The knee was thoroughly irrigated and portal sites closed with monocryl. Sterile dressing applied.

After my surgery, the Doctor spoke with my wife and stated that he had repaired the tear of my meniscus and that I had an old injury that had damaged the cartilage of my left knee. He went on to explain that the cartilage had tried to repair itself. This is supported in the Operative Details section as the doctor performed an abraded chondroplasty of the “fibrocartilaginous replacement of the Central portion of the femoral trochlea.” It is also noted that osteoarthritis in the form of fibrillation and fraying was found.

The only injury that I’ve ever had to my Left Knee (Encl 4) was on 16 April 1991, when I injured my knee while engaged in an intramural softball game with my unit. I’ve continued to have problems with my left knee throughout the reminder of my career in the Marines as well as after being discharged.

That being said, The VA stated the following reason:

Service connection for medial meniscus tear, left knee; chondromalacia; arthritic changes has been established as directly related to military service.

An evaluation of l0 percent is assigned from September 18, 2012. This is the date we received your reopened claim which is later than one year of our decision to deny service connection for a left knee disability on July 17, 2008.

Please note: The VA examination of January 2, 20l3, shows you could not complete repetitive testing due to pain. Therefore, additional functional impairment or range of motion on repetitive testing could not be evaluated. Additionally, the examiner diagnosed enchondroma of the distal femoral diaphysis. This condition was acknowledged and considered in the Board of Veterans

Appeals Decision of July 17, 2008, for which service connection was not established. Therefore, it is not included in the current evaluation.

We have assigned a 10 percent evaluation for your knee condition based on:

~ Painful motion of the knee. (38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since you demonstrate painful motion of the leg at the knee, the minimum compensable evaluation of 10 percent is assigned.)

~ X-ray evidence of traumatic arthritis along with any limitation of motion of the joint

The provisions of 38 CFR §§4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and are-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki have been considered and applied under 38 CFR §4.59.

That brings me to my next question, when I reopen my cases after I have a proper IMO, how will the effective dates be affected? I was finally able to prove after all these years that my Left Knee Pain was service connected through a knee scope. Yet the VA only assigned it from the date the claim was re-opened.

My point ....Alteration of medical evidence can be overcome by IMOs and the documented medical evidence itself.

The question I have here concerns the fact that I tried to get the VA to CUE themselves, which failed. After reading in here lately, I find that you can only get one shot. How will this affect me?

Here is a copy of what I wrote:

I had requested a copy of all of my records almost three full years ago. This past spring, I received a partial copy of my records which included files I had never seen. As I went through those files, I found a copy of my C&P Exam conducted January 2013. This exam mentioned previous exams and documentation along with dates for my different diagnosis. One of the exams noted was my C&P exam of 2006 which was also included within the partial copy of records that I had just received. The information on these C&P Exams did not add up to what I had been led to believe from my 2008 BVA Decision (Encl 9), DOCKET NO. 97-05 565. After reading through my C&P Exams, the BVA of 2008 and other records that were used in the determination of my 2008 BVA Decision, I found that the VA had misquoted at least two Exams and quoted a 1996 C&P Exam which had been previously rule inadequate.

Dr.Choi, a local Orthopedic Specialist wrote in his report (Encl 10) on 21 Jan 1996, “He does clearly have median nerve distribution numbness symptomatically.”

Yet, the BVA felt it necessary to change the wording to make their case. "He did not clearly have any median nerve distribution numbness symptomatically."

The second exam was from my April 2006 C&P (Encl 11). The Examiner was a PA-C and part of her report on my back:

"In 1994, he had radiation of midback pain to both lower extremities and bilateral feet with certain movements. He can't say which particular movement that was. He has numbness in the low midback to the left leg, right foot numbness that is constant now.

DIAGNOSTIC AND CLINCAL TEST RESULTS:

1. Thoracic spine films - Mild degenerative changes with spurring in the mid to lower thoracic spine.

2. Lumbar spine films - Degenerative changes of the lumbar spine with spurring, and minimal old compression of L3

3. CT of the lumbar spine:

T12/L1 mild broad based disc bulge without significant narrowing of the foramen.

L1/L2 Disc bulging without significant foramina! narrowing.

L2/L3 Broad based disc bulge and bilateral facet degenerative change.

L3/L4 Broad based disc bulge. Bilateral degenerative change, moderate central stenosis.

L4/L5 Broad based disc bulge. Bilateral facet change and mild to mod central stenosis.

L5/S1 Broad based disc bulge. no significant foraminal narrowing.

DIAGNOSIS:

1. Lumbar 4/5 and 2/3 minimal disc bulging 2002
2. Multiple levels of bulging disc in the low thoracic, thru out the lumbar and sacral 1 spine with varying degrees of central stenosis 2006
3. Degenerative arthritis with spurring in the thoracic and lumbar spine. 2006
4. Bilateral Retropatellar pain syndrome 1994
5. Left cortical lesion of the distal left femur. MRI 1995, x-ray 2006"

"There has been some progression in L4/5 to mild to moderate central stenosis. This Vet has certainly had further changes in the thoracic, lumbar, sacral spine that is attributed to futher injury in the 2 mentioned MVA's which may still have legal action pending there. In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability."

However, the BVA Again misquoted the examiner’s report, this time changing the

“but within any neurological disability." To “but without any neurological disability."

which completely changed the meaning of her statement concerning stenosis and I believe therefore constitutes a CUE. As you can see, I had radiating pain from my back before I was ever discharged from the Marine Corps. If the above misquotes had not been made, I should have received a rating for a neurological disability back to when I was discharged.

The 2008 BVA Decision also referenced part of my 1996 C&P Exam to decide part of my case. The 2005 BVA (Encl 12) remanded part of my case back to the Regional Office for failure to take into consideration DeLuca.

The veteran also seeks a compensable initial rating for his service-connected lumbosacral strain. This disability is rated based, in pan, on the limitation of motion of the affected joint or group of joints. 38 C.F.R. § 4.7la, Diagnostic Code 5237 (2005). Regarding orthopedic disabilities, the United States Court of Appeals for Veterans Claims (Court) has held that criteria which provide a rating based on limitation of motion require consideration of 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, to the extent possible, the degree of additional disability caused by functional losses, such as pain, weakened movement, excess fatigability, or incoordination, should be noted in terms consistent with applicable rating criteria.

However, such has not been accomplished in the present case…

The doctor that conducted my 1996 C&P Exam never looked at my Service Medical Records and refused to take into consideration any of my medical complaints or statements concerning prior treatments. My understanding is that by failing to do so render’s his medical opinion as an inadequate opinion. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). In the case Bielby v. Brown, 7 Vet.App. 260, 268 (1994), an examiner failed to read the claim file, and the Court held that an independent medical examiner’s opinion is without evidentiary value where he failed to review the veteran’s record, and thus had no basis of fact or data upon which to render an expert opinion. Therefore, the 2008 BVA should have never used any part of my 1996 C&P Exam to decide any part of my case. This, I believe, constitutes another CUE.

THANKS

Billy

Edited April 5, 2014 by elcamino_77us