Do you see a CUE in this C&P Exam?

[syne7]

Here is my C&P Exam from 1998.  Do you see a CUE?

C&P Examination 1/20/98

 

PLACE MEDICAL OF EXAM: HISTORY: New  Orleans V.A.M.C.

 

 

 

The patient is a 27-year-old white male who was in the Army from 1990 to 1997.  The patient had two problems while he served his time in the military.  He had a stress fracture of the distal phalanx of the second and toe and he had a loose tendon of his left ankle.  The patient states that his left toe does not give him and problems.  The patient states basically his left ankle doesn’t give him any problems but he does have pain during physical activity.  The patient states that since his injury to his ankle, he had about 20 or 30 ankle sprains and his last one was about seven months ago.  The patient stated that has sustained these ankle injuries basically during physical activity.  The patient states that otherwise during his daily, non-physical activities, the patient does not have any ankle problems.

 

PHYSICAL EXAMINATION:

 

Skin:  No hypo or hyper-pigmentation noted.  Vascular:  No abnormal findings.  Nuerological:  Sensory and motor, no abnormal findings.  Musculoskeletal:  The second left toe the DIPJ full range of motion.  Toe in rectus position.  Ankle dorsiflexion 10 degrees.  No intra-articular swelling.  No ligamentous laxity noted.  No peri-articular swelling of the ankle.  No intr-articular swelling of the ankle.  There is 45 degrees of ankle plantar flexion, 10 degrees of ankle dorsiflexion.  The range of motion without any pain or crepitus.

 

X-RAY:

 

Refer to radiology report.

 

IMPRESSION:

 

1.        Status post stress fracture of second left toe without any problems.

 

2.       Full range of motion of left ankle without any pain, swelling or functional loss.  However, patient had a history of 20-30 ankle sprains during physical activity but not during non-physical activity.

_____________________________________________________________________________________________________________________________________________________________

1

I believe there was a clear and unmistakable error (CUE) on my rating decision of 8/05/1998 for the following claim:

 

1.       5271 Chronic Left Ankle Sprain (Claimed as loose tendons, left ankle) )% from 5/11/1998.

The following are the CUEs that occurred during my left ankle evaluation

 

1.       No DeLuca or Fatigability protocols were used during the C&P Exams.

 

2.       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.”  Normal range of motion dorsiflexion is 20 degrees of dorsiflexion per 38 C.F.R. § 4.71.  Clearly 10 degrees is only 50% of 20 degrees.

 

3.       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.  However, there were multiple pieces of evidence demonstrating a limited range of motion:

 

a.       The C&P exam noted a 50% limitation of dorsiflexion (10 degrees versus 20 degrees).

 

b.       Service medical records dated 11/25/1992 show left dorsiflexion at 0 degrees and plantarflexion at 35 degrees (10 degrees below the 45 degree plantarflexion).

 

 

Thoughts?

[Berta]

The CUE would be found, if there is one, in the RO decision that interpreted this C & P exam.

Chedk the diagnostic code and ratings in existence at time of the 1998