Carpal Tunnel CUE?

[USNIPER07]

I was diagnosed in 2010 with Bilateral Carpal Tunnel 10% Right (Major) and 10% Left Minor. I just noticed that the Neurologist's report sent to the VA reads a diagnosis of Carpal Tunnel Right = Moderate and Left = Mild. The rating for that should be 30% (Right/Major) for moderate and 10% (Left/Minor) for mild. Is this a pretty clear CUE or do you think I may have problems changing the decision?

[Berta]

It looks like a CUE to me- at first glance -and the prime higher disability is in your dominant hand but-there are other factors to consider if this is actually a CUE.

This recent 2017 BVA decision gives the ratings and diagnostic code info for carpel tunnel syndrome:

https://www.va.gov/vetapp17/files1/1702683.txt

In part the decision states:

Under Diagnostic Code 8515, a 10 percent evaluation is assigned for mild incomplete paralysis of the median nerve of the major or minor hand. A 30 percent evaluation is assigned for moderate incomplete paralysis of the median nerve of the major hand; a 20 percent rating is assigned for the minor hand. A 50 percent evaluation is assigned for severe incomplete paralysis of the median nerve of the major hand; a 40 percent rating is assigned for the minor hand. Finally, a 70 percent evaluation is assigned for complete paralysis of the median nerve of the major hand, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of the wrist weakened; pain with trophic disturbances; a 60 percent rating is assigned for the minor hand. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2016)."

But it adds this codicil:

"The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be of the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

https://www.va.gov/vetapp17/files1/1702683.txt

I am assuming ( but could be wrong) that you did not file a timely appeal on this decision.

If so that would mean providing them with New and Material evidence that the disability got worse

(my neighbor has CTS and it has sure gotten worse over the years) and then if VA rates it higher than it is rated at now, that might be the way to CUE the older decision.

Are you able to work with this disability?

[USNIPER07]

Berta,

I actually had another exam from the same neurologist yesterday and it has gotten worse. My left is now Moderate and right is Moderate Carpal Tunnel. The original claim in 2010 was rated at 10% for each although the exam diagnosis at the time stated Left = Mild and Right (Major) = Moderate. I just noticed the error from 2010 and obviously can't appeal the decision. I can file a CUE, but now I have evidence to increase both. I just wouldn't be able to retro the right wrist mistake. Your thoughts?

Respectfully,

usniper07

[Berta]

By right wrist do you mean the CTS is in the right wrist?

I think you should re-open for a higher rating and that recent exam might well make the claim go faster.

I also recommend referring to the CUE claim  in the new claim, and then write that separately , referring, them back to your newer re-opened claim.

(I suggest that because I am thinking of a possible retro staged rating-but I might be thinking out of my a-----ooops -hat.

It is an obvious CUE under 38 CFR 4.6 because they did not consider your  established medical evidence

properly in the older decision, to your detriment.

We have CUE templates here and best to keep a CUE short and sweet,which you can do. And hopefully by now your VARO has developed their ability to read.

38 CFR 4.6:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

[USNIPER07]

I was diagnosed with CTS in both hands (sorry). Where can I find a CUE template? You recommend I submit a CUE for the mistake in 2010 and reopen or file for increase for the current exam that increases the Left?

[Berta]

Yes, that is what I mean.

I have had problems finding a CUE template here- and am sure there is  at least  many here-maybe within posts under CUE topics.

This is one of my past CUEs and can be used as a template/example of what these claims need to include:

VARO Buffalo            date C file # etc 

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A.

 

 

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

 

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to his death.

 

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

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

This can be used as a template and there are more templates here but this 

covers the main points:

 

1. Defining the exact legal error with proof from the past decision. (They need the date of that decision and/ or an enclosure of a copy of it-to include the rating sheet info.)

State the exact legal error (I could have used 38 CFR 4.6 but didnt) and stated the IHD  was never acknowledged in the 1998 decision. In your case I would use 38 CFR 4.6 and explain the error to them briefly.You might need to enclose a copy of the C & P exam as well that garnered the decision you are filing CUE on.

Stating the outcome was detrimental to you (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.( I referred to exhibits of evidence that all were in VA's possession at time of the 1998 CUE.)

Also checking to see if the right diagnostic code was used in the older decision and if any regulation had changed that affected the way they rated the disability in the past. I am sure theBVA case rating info in the BVA link shows that the ratings for this disability had not changed since your  past claim was decided.

I have always put my name, address and C file # on every page and exhibit I have sent to them. I always send them USPS Priority with a tracking slip but maybe a CUE can be filed on ebenefits- I don't know.

The 1998 decision was an award letter. But nevertheless it contained 4 separate CUEs  and I succeeded in them all.

I will try to find some more templates here tomorrow...CUEs are unique and many here have succeeded on CUE after studying the info in our CUE forum.

 

 

 

 

Edited January 11, 2018 by Berta

[USNIPER07]

Great information! Thank you for your help on this.