degenerative arthritis CUE for one rating.

[spearhead91]

Hello all,

I have been away awhile busy with appointments and work etc. I have a question one rating and if it should have had two ratings instead of one by the verbage used from the decision. I've had the BBE for a week now and still digesting and reading and re-reading.

 

Issue/Contention:

XXXX knee degenerative arthritis,      20%
status post meniscal tear with
ACL reconstruction and ACL
deficiency

Explanation:

The provisions of 38 CI'R $4.40 and $4.45 concerning functional loss due to pain, fatigue,
weakness, or lack of endurance, incoordination, and flare-ups, as cited in Deluca v. Brown
and Mitchell v. Shinseki, have been considered and are not warranted.
A higher evaluation of 30 percent is not warranted for impairment of the knee unless the
evidence shows: . Severe instability; or, . Severe recurrent subluxation.
This is the highest schedular evaluation allowed under the law for dislocated semilunar
cartilage of the knee.
A higher evaluation of 30 percent is not warranted for limitation of flexion of the knee
unless the evidence shorvs: . Limitation of flexion of 15 degrees or less.
We have assigned a 20 percent evaluation for your left knee degenerative arthritis, status
post meniscal tear based on: . Dislocated semilunar cartilage with frequent episodes of
"locking," pain, and effusion into the joint Additional symptom(s) include: . Painful motion
of the knee . Slight instability.
The effective date of XXX XX,2015 is assigned based on the date VA received your Intent to
File (ITF).

 

It looks like they used code 5258 meniscus. But isn't that two ratings in there one for meniscus and one for "slight instability" 5257? So meniscus is 20% and shouldn't the other be 10%? For a 20% and 10% for the knee? My ortho DR has given me a brace to keep from damaging it anymore. So is this really a CUE?

 

[broncovet]

You are in the appeal period (1 year), so stop thinking about CUE, which normally applies only when you did not appeal within a year.  File a "normal" NOD, instead.  Why?  Because its in your best interest to Keep "benefit of the doubt", which goes away if you file a CUE.    Dont "give up" benefit of the doubt unless there is a compelling reason.    Hang on to that Benefit of the doubt, because it may be a difference maker.  

Both a NOD and CUE suggest that the VA made errors deciding your claim.  But the Cue standard of review is much stricter than the NOD standard.  

Its like you are taking the drivers test.  You have two choices.  You can choose "Mr. Nod" or Mr. CUE to give you the exam.  Mr. NOD says, "Aw heck, Im gonna give you the benefit of the doubt and pass you, even if its close."    

Mr. Cue, however, says you have to prove every step and if you even bring up benefit of the doubt, I will fail you.  

Which one do you choose, assuming you must get your drivers license or lose your job?  

[spearhead91]

Thanks broncovet for that explanation.