Please help evaluate my CUE letter.

[syne7]

Hello all,

Here is the rough draft of my CUE letter.  I was rated at 0% for left ankle limitation of motion (5271) on 5/11/1998.  Also, 10% for Asthma.  Stupidly, I have never interacted with the VA till this year.  I have been paying for my inhalers for 18 years. :(.

I am revisiting my claims and believe I have a potential CUE based on the fact that no fatiguability tests or Deluca protocols were performed and the C&P Examiner measured my range of motion at 10 degrees of dorsiflexion but declared my range of motion as normal.  I would appreciate any suggestions of help, especially in the area of Deluca protocols and fatiguability testing.  My understanding is that I should have been asked to move my ankle rapidly several times to test for decrease motion and increased pain.

Here is the rough draft of my letter:

Department of Veterans Affairs                                                                                    April 6, 2016
Waco Regional Office
701 Clay Avenue
Waco, TX 76799

CLAIM OF CLEAR AND UNMISTAKEABLE ERROR (CUE) 38 U.S.C. § 7111(a).
REQUEST OF REVIEW OF DECISION FOR XXXXXXXXXXXXXXXXXXXXXX DATED 8-5-98

I am asserting that a clear and unmistakable error (CUE) was made my rating decision regarding my service connection for chronic left ankle sprain which was rated at 0% effective 5/11/1998.  I respectfully request your review of this matter to determine if a CUE did occur and to take all appropriate action to address the situation.

1.       In processing this claim, I believe there were several facts/descriptions that were not correctly presented to the rater or not considered in the decision.  This resulted in a rating of 0%.  Which I believe to be incorrect.

 

2.       The rating decision dated 8/5/1998 states, “There was no evidence of limited range of motion in the left ankle to warrant a compensable evaluation.”  I found several instances of evidence of limited range of motion, even on the C&P Exam.

a.       An entry from my service medical records dated 11/25/1992 showed left dorsiflexion at 0 degrees (a potential 100% impairment of the normal range of dorsiflexion defined by 38 C.F.R. § 4.71 of 0 to 20 degrees) and plantarflexion at 35 degrees (10 degrees of impairment from the 0 to 45 degree normal range of motion for plantarflexion defined by 38 C.F.R. § 4.71).

b.       Another entry dated 11/4/96 (Med Board Exam) where the physician stated “trace edema left ankle with slight decrease in range of motion.”

c.        The physician’s C&P exam noted a 50% limitation of dorsiflexion (10 degrees versus 20 degrees).  The C&P examiner “pain with activity.”

 

3.       The C&P Exam dated 1/17/1998 by Demarco stated ankle dorsiflexion at 10 degrees.  Then follows up to say “full range of motion.”

a.       Normal range of motion 0 to 20 degrees of dorsiflexion per 38 C.F.R. § 4.71.  Clearly 0 to 10 degrees is only 50% of the normal range of motion (0 to 20 digress) for dorsiflexion.  I respectfully assert that 50% loss of motion, is not normal range of motion.

 

4.       I also believe that statutory and regulatory provisions were not followed.  During my C&P exams, no fatigability tests were performed and none of the Deluca protocols were followed.  I was not asked to perform any repeated motions.

 

5.       Further in examining my range of motion, I was asked to move the ankle as far as it would go, but not to indicate where I felt pain.  As a soldier, I can bear a fair amount of pain even, and the range of motion observed, 10%, was quite painful.  Noted pain in my ankle with activity and walking up steps increasing pain frequency and intensity, as well as swelling.  The physician also noted my having to stop running and decrease activity to keep pain in moderate control.  Further, the physician noted that the pain affect a core task of my job at the time moving computers.

 

6.       As I stated very clearly, that I had pain with activity.  Applying the required fatigability tests and Deluca protocols would have demonstrated enhanced pain and even more limited motion.

 

7.       Clearly these factual errors, missing the multiple pieces evidence of limited motion, and not applying the appropriate statutory and regulatory provisions (tests & protocols).  Would have made a material difference in the outcome of my rating decision.

 

a.       Based on rating code 5270 in dorsiflexion between 0 degrees and 10 degrees should be rated at 30%.  This is exactly what the C&P examiner found and in service.  Based on rating code 5271, marked limitation of motion would be rated at 20%.  I believe pain in motion also merits a rating.

I respectfully submit that I have met all the criteria for a CUE:

1.       The claim I am asking you to review is a “closed claim” with a “final decision.”

2.       Correct facts were not before the rating authority and by definition 10% dorsiflexion, cannot be “normal motion” and there was evidence of limited range of motion in the service medical records, the med board exams, and the VA C&P exam.

3.       Protocols required by law were not followed such as feasibility tests and Deluca protocols.

4.       Each of these CUEs would certainly change the outcome of the rating decision.

I urge to examine this CUE petition and determine if an error was made.

 

Thank you for your time and attention on this matter.

 

                                                                                                Respectfully,

 

 

[Berta]

http://thomasandrewslaw.blogspot.com/2010/08/cullen-deluca-applied.html

A good read on Deluca as well as Cullen V Shinseki ,in this article by a lawyer.

I suggest you cite that the claim is being filed under auspices of 38 USC 5109a in  the beginning

statement. Then state you have enclosed a copy of the 1998 decision and rating sheet that contains clear and unmistakable errors regarding the diagnostic code used, and the rating given, manifesting an altered outcome in 1998,  to your detriment.

This might be problematic:

“In processing this claim, I believe there were several facts/descriptions that were not correctly presented to the rater or not considered in the decision.  This resulted in a rating of 0%.  Which I believe to be incorrect.”

CUE claims rely completely on established medical evidence. It does not matter where that evidence was , as long as it was in VA’s possession at time of the alleged CUE decision.

If I were you I would change that statement to

“There were several medical factors not taken into proper consideration from the enclosed copy of the C & P exam of                 causing the rating to be incorrect: (and then list those specific entries, and highlight the copy of the exam that you send them.

And add that the diagnostic code also contains CUE (it appears you did state that well)

I assume those diagnostic codes have not changed since 1998.

There is rhetoric here that you don’t need to put in. CUEs should be short and sweet and solely deal with their errors.

They don’t care what we  believe, how we feel, or whether we urge them to determine if any error was made.They will know the 1998 decision is final.

This is OK to end with:

“Thank you for your time and attention on this matter.

 

                                                                                                Respectfully”

My point is definitely try to get the entire CUE on one page.At the bottom of that page list and briefly describe the enclosures.

You did your homework on this and I commend you.

I am assuming that was a SC “0” and not a NSC “0”.

 

 

 

 

 

 

                                                                                  

[broncovet]

Fantastic job, both for Berta, and you, syne7.  I agree with Berta...do not put ONE sentence in there that is what you feel or what you think.  Always cite the medical evidence statements, and the case law or regulation which supports your allegation of CUE, and take into account how Berta's link resulted in a favorable application of Deluca:

The Court found the Board’s discussion of the effects of pain, weakness, or fatigue to be conclusory and without a supporting rationale. Id. at *14. Regarding the spinal rating, the Court found the physicians statement was problematic because the statement is not helpful to the Board in reaching a conclusion because it lacks any specifics regarding the effects of the additional limitation of range of motion and that the Board’s failure to explain its conclusion any more thoroughly than the VA examiner was error. Id. at *15.Regarding the shrapnel wound to the shoulder, the Court found the Board’s statement that the additional functional limitation of more nearly approximates a moderately severe disability is conclusory and unsupported by a further explanation and the Board did not address the fact the VA examination found the veteran’s flexion was limited to 60 degrees which would support his assertion that his disability limits his range of motion to midway between his side and his shoulder and therefore entitles him to a 30 percent rating. Id. at *16.

Thus, we can see that usually a DeLuca challenge is most powerful when couched as a failure to give adequate reasons or bases for denying the increased rating (i.e., it did not properly address the DeLuca factors.

I would also suggest you read about Colvin vs Derwinski.  You see, the Board is given the authority to make "factual findings" and, the Veteran may/may not agree with those factual findings.  The CAVC rarely disputes these "factual findings" as long as the Board gives an adequate reasons and bases as to why they came to this conclusion.   Usually, what you nail VA on is they did not give an adequate reasons and bases for this conclusion, that is, its a "post hoc rationalization".  

A "post hoc rationalization" suggest the decision maker looked at the name on the decision, and decided, that he would conjure up an excuse and deny.    So, he makes up excuses after reading the case as to why they are gonna deny the guy.  

One way VA does post hoc is they dont give any reasons, or gives inadequate reasons.  

Another way Va does post hoc is that they just "forget" to mention evidence favorable to Veteran.  Dont let em do that.  

https://veteranclaims.wordpress.com/tag/colvin-v-derwinski/page/2/

Edited April 6, 2016 by broncovet

[broncovet]

Always keep this in mind:  

VA does not give a rip what we think or feel.   

In other words, I think I should get benefits back to 1970, so I can get a faster car, a younger wife, and drink older whiskey.  

(A very old friend of mine that passed said that men work their lives to get 3 things:  Faster horses, Younger women, and older whiskey.   He was being facitious, but it is true that the best things in life aren't "things", and we dont want to put our wife on a bucket list so we may "brag" to our friends what a young beautiful wife we have.   Its soooo shallowwwww.  Its a very sad waste of our life to live it in persuit of these 3 things.  

[syne7]

Thank you very much for candid and meaningful advice.  I appreciate it greatly.

[mos1833]

quick question to berta

whats the difference 

i thought a rating was a rating

is the nsc 0 still called a rating ?

is this right  sc 0 ( then you ask for an increase )

and the nsc 0 ( you try to re-open )

thanks

 

I am assuming that was a SC “0” and not a NSC “0”.

[Berta]

If a rating is denoted as NSC, there usually cannot be a CUE because there would be no manifested outcome.

NSC (non service connected) means no comp.

However if the NSC is successfully challenged to become SC ,by CUE -because VA did have evidence in their possession at time of that decision, that warranted the SC , then the rating could still be wrong and therefore a valid additional CUE could be filed.

The 1998 decision CUE I won ( 3 CUES in one) was due to, in part,to a NSC rating for stroke ,no rating or Diagnostic code at all for IHD, and the major SMC CUE.

That decision was an 1151 award letter and it clearly spelled out the proven malpracticed conditions, to include the NSC stroke (1151s become " as if SC"), and then subsequently the IHD (1151 and AO SC) and SMC CUEs were adjudicated under Nehmer.

1151 will appear on rating sheets as NSC and that term should have a rating after it.

Those claims ratings  are fully able to garner SMC if the other SCs ( a separate 100% SC  or separate 100% 'as if SC" ) warrant SMC.

Had the VA properly prepared the 1998 rating sheet, and even if they had listed the IHD as NSC, then Nehmer would have covered that , after all those years, if I didn't know any better (but that was a 2004 CUE I filed)

ooops I am wrong...I was one of Many ,like our member Chuck, who were deliberately left out of the Nehmer lists the Ros were supposed to send to NVLSP...and luckily, even though they shipped the claim to 2 wrong ROs, and lost it for a while, I knew better...and it finally got top the Nehmer RO.

Thousands ( millions?)of disabilities deemed NSC are re opened to a successful outcome by veterans.

Because the veteran has supplied New and Material evidence that is not redundant to what they had sent in the first place for the claim that was denied.