Cue Question

[PintoRacer]

Does the VA apply the same stringent definition to itself when using CUE to reduce an award?

Specifically the requirement to use the records that existed at the time of the CUE or can they use new evidence from a recent exam under 3.105(e).

I understand a new exam can be used to sever service connection under 3.105(d) if a doctor certifies the initial diagnosis was not correct.

Any info helps.

Thanks

[Navy04]

What you have stated is a possibility, but is very rare my friend. What exactly are you referring to in your case.

[Vync]

Also keep in mind if they propose to sever SC, they don't just push a button to do it. They will send you a written notification that you can, and should, contest.

[Berta]

There are quite a few BVA decisions on line regarding severances due to CUE,such as

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files3/1325669.txt

The veteran did overcome the severance in that case but we need more info to understand what VA is attempting to do,

A wrong diagnosis can also mean a basis for a Section 1151 claim..if the inaccurate diagnosis caused inappropriate treatment and meds, enough to cause an a addiitional disability of at least 10 % disabling.

[PintoRacer]

Here is the proposal to reduce my rating. A little history first. I was involved in a training accident in 1982 where a gun jeep went into a ditch at high speed. My hospital records show a diagnosis of “oblique comminuted fracture of the left distal humerus” . The humerus was shattered in 6 – 8 pieces, some small pieces are still visible on xray as well a bone spikes and spurs, the surgeon notes describe debridement and copious cleaning of the wound. It was repaired with a plate and 8 screws. The arm is visibly shorter and angulated and the VA lists this in the original decision. An infection was also documented in my SMRs and a VA examiner documented the associated muscle issue. I specifically applied for a disability for residuals of an impairment of the humerus under DC 5202. The VA granted a 40% analogous evaluation, under DC 5202, for this injury due to the associated muscle injury, scarring, shoulder issues and the bone deformity. I have requested a predetermination hearing but has not yet been scheduled.

Later exams use the term Supracondylar fracture to describe the injury. The VA is now saying in the proposal it was an elbow injury and it was CUE to assign DC 5202 for an elbow injury. Googling Supracondylar Fracture shows this appears to be based on a wikipedia definition as it was copied word for word into the proposal. They want to discontinue DC 5202 and substitute DC 5024 at 10%. At one time I both 5024 and 5202 ratings assigned, but the 5024 rating was discontinued over a year ago so only 1 evaluation exists for 5202. not 2 as mentioned in CUE #3. My specific issue involves the CUE #2 listed below. Any help is appreciated.

Please read CUE #2 carefully, I am trying to determine the specific error of fact or law. I am also concerned about the use of recent exams as the CUE requirements limit the evidence to that which existed at the time of the error.

PROPOSAL FOLLOWS

We received a Notice of Disagreement from you on November 16, 2012 about one or more of

our earlier decisions. You further requested review of your claim by a Decision Review Officer

(DRO). Accordingly, this decision is the result of a de novo review, or "fresh look" at your

claim.

1. A clear and unmistakable error was made in rating decision dated September 30, 2009 in

assigning a 10% evaluation for the left elbow disability when a 0 percent evaluation was

appropriate.

3. A clear and unmistakable error was made in rating decision dated March 30, 2011 in

assigning a 40 percent evaluation for the left shoulder.

3. A clear and unmistakable error was made in rating decision dated March 30, 2011 in

assigning 2 evaluations (under DC 5299-5202 and 5099-5024) evaluations for the left

shoulder. It is proposed to discontinue 5299-5202 and rate the condition under 5099-5024

with a 10%evaluation assigned.

The combined evaluation for all of your service-comiected disabilities will drop from 70% to

50%. We do not add up the percentages of your disabilities to find the combined evaluation. We

use a combined rating table to compute it.

REASONS FOR DECISION

1. Whether clear and unmistakable error was made in rating decision dated September 30,

2009 in assigning a 10 percent evaluation for the left elbow when the facts warranted a 0

percent evaluation.

2009 rating for the left elbow assigned a 10% for painful motion but the exam DID not show

painful motion. There was slight (0-130 degrees) limitation of motion but no degenerative joint

disease so the appropriate eval was 0% not 10%. The next rating decision dated December 9,

2009 continued the evaluation noting painful range of motion in the outpatient treatment reports

but the painful range of motion referenced in these reports was in the shoulder joint, not the

elbow joint. Since both of the disabilities use the term "humerus" in the description, this could

explain the disparity but one is the distal humerus (the elbow) and the other is the proximal

humerus (the shoulder).

Clear and unmistakable errors are errors that are undebatable, so that it can be said that

reasonable minds could only conclude that the previous decision was fatally flawed at the time

it was made. A determination that there was clear and unmistakable error must be based on the

record and the law that existed at the time of the prior decision. Once a determination is made

that there was a clear and unmistakable error in a prior decision that would change the outcome,

then that decision must be revised to conform to what the decision should have been.

The decision to grant a 10 percent evaluation for the left elbow is clearly and unmistakably

erroneous because the evidence did not show painful range of motion and the range of motion

limitation did not meet the compensable requirements and there was no evidence of degenerative

jooint disease in the joint at that time.. The decision was not properly based on the available

evidence of record at the time and the rules then in effect.

If the evaluation is reduced from 10% to 0% the combined evaluation would be reduced from

30% to 20% for the period 4-30-09 to 6-17-10.

2. Whether clear and unmistakable error was made in rating decision dated March 30,

2011 in assigning a 40 percent evaluation for the left shoulder.

This case has had confusion throughout because of the term "humerus". The humerus is a bone

which is between the elbow joint (this would be the distal humerus) and the shoulder joint (this

would be the proximal humerus). On the last exam, the examiner himself confused the issue

by diagnosing a "Shoulder left supracondylar fracture, old, healed, internal plate fixation".

Supracondylar fracture is defined as "A supracondylar fracfgre is a fracture. usually of the

distal humerus just above the epicondyles....Presenting complaints: The individual presents

with history of a falling on an outstretched hand followed by pain. swelling and inability to

move the affected elbow.....On examination: Unusual prominence of olecranon process but

because it is a supracondylar fracture, the three bony point relationship is maintained, as in a

normal elbow." The injured joint in service was the ELBOW not the shoulder. the shoulder

has been service connected as secondary to the elbow injury due to altered mechanics and

muscle tension. There is no fiacture in the shoulder joint. The most recent x-ray report (8-l-l2)

shows the following: "Evaluation of the scapula and shoulder joint as well as adjacent left

hemithorax is unremarkable for fractures. No lytic or blastic lesions appear no soft tissue masses

or calcification. Impression: Unremarkable scapula. Primary Diagnostic Code: NORMAL" On

the VA exam of 6-29-12, the left shoulder flexion was 0-180 degrees with pain at 0 degrees;

abduction was 0-180 degrees with pain at 0 degrees. There was no change in the range of

motion findings after repetitive testing (a method of judging the effects of pain, weakness, etc,

on the function of a joint) and there was no evidence of fatigability, incoordination or weakness.

The Veteran does not have any functional loss and/or functional impairment of the shoulder and

arm per the examiner. Motor function and strength was normal. The Hawkins’ Impingement

Test was positive as was the empty-can test, Crank apprehension and relocation test, and external

rotation/infraspinatus strength test. There is no history of mechanical symptoms (clicking,

catching, etc.). There is no history of recurrent dislocation (subluxation) of the glenohumeral

(scapulohumeral) joint.

In the Statement of the Case dated 3-25-l l, the DRO stated that this condition was rated

analogous to this Qondition because of the faulty unionjbut the x-ray report does not show

any faulty or fibrous union. The last x-ray of the elbow (6-29-12) showed "Left elbow: Plate

screw fixation device is seen across the distal aspect of the left humerus. Hardware appears

intact. There is some deformity of the distal humerus consistent with previous fracture. Minor

degenerative changes are seen at the elbow. Impression: Previous fracture distal left humerus

appearing intact and healed. Hardware appears intact. No interval change compared to study

of 8/31/09." The NHI says this about supracondylar fractures: "Supracondylar fractures are a

common elbow injury..." It was not correct to rate this under a shoulder code even if citing that

it was rated on an analogous basis. There is no evidence of a fibrous union or faulty union. To

warrant a 40% evaluation under an elbow code for a non-dominant elbow there would have to

be severe limitation of motion (flexion limited to 45 degrees or less and extension limited to 110

degrees or less). A flail joint would warrant a 40% evaluation. This Veteran has nearly normal

elbow function.

It is proposed to reduce the evaluation of the left elbow injury rated under the shoulder strain

from 40% to 10%.

We have proposed a l0 percent evaluation for your shoulder condition based on:

~ Painful motion of the shoulder. (38 CPR §-1.59 allows consideration of fimctional 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 arm at the shoulder, the minimum compensable

evaluation of 10 percent is assigned.)

Additional symptom(s) include:

' X-ray evidence of traumatic arthritis

The provisions of 38 CFR §§4.40 and 4.45 concerning ftmctional loss due to pain, fatigue,

weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8

Vet. App. 202 (1995), have been considered and applied under 38 CFR §4.59.

A higher evaluation of 20 percent is not warranted for traumatic arthritis unless there is X-ray

evidence of involvement of two or more major joints or two or more minor joint groups, with

occasional incapacitating exacerbations.

A higher evaluation of 20 percent is not warranted for limitation of motion of the shoulder unless

there is limitation of motion at shoulder level.

The combined evaluation would be reduced from 70% to 50%.

3. Whether clear and unmistakable error was made in rating decision dated March 30,

2011 in assigning 2 evaluations (under DC 5299-5202 and 5099-5024) evaluations for the

left shoulder.

38 CPR 4.14 prohibits the evaluation of the same disability under more than one code. The

rating of 3-3 0-1 l assigned 2 evaluations for the left shoulder under diagnostic codes 5299-5202

and 5099-5024.

Clear and unmistakable errors are errors that are undebatable, so that it can be said that

reasonable minds could only conclude that the previous decision was fatally flawed at the time

it was made. A determination that there was clear and unmistakable error must be based on the

record and the law that existed at the time of the prior decision. Once a determination is made

that there was a clear and unmistakable error in a prior decision that would change the outcome,

then that decision must be revised to conform to what the decision should have been.

The decision to evaluate the shoulder under two codes is clearly and unmistakably erroneous

because it is prohibited by law. The decision was not properly based on the available evidence

of record at the time and the rules then in effect.

lt is proposed to discontinue 5299-5202 and rate the condition under 5099-5024 with a 10%

evaluation assigned.

[PintoRacer]

My response:

Re: 339/215/LSP – Evidence and statements against DRO proposed reduction dated December 30, 2013.

I am currently service connected under diagnostic code 5299-5202 (impairment of the humerus). The proposal to reduce my rating would discontinue (sever) service connection for a humerus disability and substitute a shoulder disability. On May 28, 2009 I submitted a claim for the residuals of a comminuted left humerus fracture. On March 23, 2010 and again on September 2, 2010 I specifically clarified the disability I sought was for a bone deformity of the humerus under diagnostic code 5202. The service-connection for this disability was granted March 30, 2011 by a DRO decision.

In malunion, the bone may have healed at a bent angle (angulated), may be rotated out of position, or the fractured ends may be overlapped causing bone shortening. Malunion may be caused by inadequate immobilization of the fracture, misalignment at the time of immobilization, or premature removal of the cast or other immobilizer. The previous DRO decision date March 30, 2011 granting service-connection specifically stated the evidence shows the bone is rotated, a lay person can see that my left arm is shorter than my right, both the previous decision and the “proposal to reduce” states that the xray evidence shows a deformity at the site of the fracture and §4.44 states that angulation is expected in the shortening of a long bone. My contention is the evidence in existence at the time, and supported by a previous VA determination, clearly meets the criteria for malunion with deformity under DC 5202.

In reviewing the proposed reduction letter, the CUE error specifically stated is; ” It was not correct to rate this under a shoulder code even if citing that it was rated on an analogous basis. “ In context of the proposal “this” means; “The injured joint in service was the ELBOW not the shoulder.” It was neither. Hospital records document the injury as a “comminuted oblique fracture of left distal humerus” . The medical term supracondylar is defined by Dorland's medical dictionary as; above a condyle. Meaning “above the elbow” joint. In all the documents I submitted I never once claimed an elbow or shoulder injury. My elbow is normal and was not injured in the accident. There is also no evidence in my medical records of diagnosis or treatment of an elbow injury. There is, however, a preponderance of evidence of diagnosis, treatment, consistent complaints of pain and weakness over the past 30+ years, military profiles, and work restrictions for the residuals of a oblique comminuted fracture of the left distal humerus.

The essence of a CUE is that it can not be debatable. I believe that if a reasonable mind properly reviewed of all the evidence they would concur that 'this' disability was not caused by an elbow or shoulder injury, but by the oblique comminuted fracture of the left humerus that resulted in malunion with deformity. This clearly makes the CUE debatable therefore the CUE does not exist. There is no such thing as a partial CUE, so if I meet the objective requirements for malunion with deformity under DC 5202 then the additional evidence listed in the May 30, 2011 decision that supports the increased rating, by analogy, under the same diagnostic code can not be CUE either. Rating by analogy does not require all objective criteria be met. How the evidence was weighed and evaluated also does not rise to the level of CUE. I therefore request all CUE claims affecting DC 5202 in the Proposed Reduction be withdrawn and the May 30, 2011 decision continued.

I certify that the statements on this form are true and correct to the best of my knowledge and belief.

[Berta]

You raise some very good arguments but I dont see a CUE claim from you as the remedy here.....

I am glad you asked for a hearing, and feel uyou should get an opinion from a real doctor ,with expertise in this field of disability, who follows the IMO criteria here at hadit and gives a full medical rationale as to why they are medically wrong.

I was stunneed by this one:

"Googling Supracondylar Fracture shows this appears to be based on a wikipedia definition as it was copied word for word into the proposal."

Ain't that the shits. Maybe this is how the C & P examiners develop their medical BS...Wikipedia....which is not a medical text or site..and not always reliable at all.

VA probably uses Dorlands and also definitely uses Merck.

You are sure doing your homework here to combat this proposed reduction but I fear it will take an IMO to succeed.

Edited July 30, 2014 by Berta