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How to write an effective CUE letter


Carmand47

Question

This is a CUE under auspices of CUE, 38 USC, 1509A.

I have Enclosed copies of the following decisions:

 

Decision letter dated 27Apr04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99.  

Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service.

An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received.

 An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain.

Page 4, paragraph 2 the decision dated 27Apr04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

 

 a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.

 

 

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Your letter is a bit hard for me to follow.  And, I might add, I have about 2 years above a Bachelor's degree.  So, my suggestion is that your CUE letter be simple enough that an 8th grade educated person could understand it, because that is probably who will be evaluating it.  

I think maybe you "cut and pasted" too much of the decision(s) that may not be relevant, rendering it difficult to follow.  

Here is a suggested format that may be easier to follow:

     The Veteran alleges the VA violated 38 CFR 4.6 as follows:

     The decisions dated 27 Feb 04 and 22 May 01 are in conflict with each other, and did not take into account the medical exam dated 8/22/03.  

     (Now explain how the exams conflict, and how the 2003 exam supports the criteria for a higher rating).  

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I guess you did not think my advice was good enough - in another thread you posted this in-

that I replied to twice.

 I dont know what thread it was in.

Others will reply.

 

 

 

Edited by Berta (see edit history)
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I suggest you listen to Berta in regard's to CUE.  

38 USC 1509 a, that you posted, does not seem relevant to me.  I think Berta suggest citing 38 CFR 4.6 in many/most CUE's.  

https://www.law.cornell.edu/cfr/text/38/4.6

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Thank you Broncovet- that was the first citation he used and it is wrong.I gave him the correct citation in the other post.

The correct citation is in all of the CUE templates here.

But we have not seen the actual decisions yet, that he is filing CUE on, so everything I stated in my replies might well be useless.

CUE claims need a copy of the actual potentially erroneous decision attached to them, as well as the ratings sheet, in most cases.

 

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Oh no berta thats not it. I welcome your advice im running blind here. I really appreciate the time your taking to help me.  I was also trying to figure out how to scan these copies of my decision letters. i might just have to screen capture on my phone then up load them to my computer so you can see them.

I apologize im very new to the site. Please bare with me.

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₴ 4.6 Evaluation of evidence

This is a CUE under auspices of CUE, 38 USC, 1509A.

 

I have Enclosed copies of the following decisions:

 

Decision letter dated 27Feb04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99.  

Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service.

An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received.

 An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

 

 a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.27feb04 spt doc decision ltr.pdf

22may01 spt doc decision ltr.pdf 3.pdf

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I apologize for being abrupt-

You do have the right idea as to what a CUE is and I commend you for that!

It will take me time-to go through all this but one question----

Carmand- if the VA had done the proper percentage on this decision,dated 27Feb04,  and your evidence would have garnered the  30 % ,  then all other decisions after that would have had the proper rating....do you agree?

What I am trying to determine is what was the first decision that made the error (which could certainly impact on other decisions, but I am trying to find the best EED (Earliest Effective Date) possible.

The correct citation is 38 USC 5109a.

'This is a claim of clear and unmistakable error under auspices of 38 USC 5109a.

Tell them they did not  thoroughly and conscientiously study  this probative evidence they had from you: 

"a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC"

(Also it appears the MRI narratiive was not considered.- tell them that as well if they did not seem to use it)

I feel the VA violated my rights under :

§ 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." 38 CFR 4.6

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay."

I would change the last statement to :

This critical error was detrimental to me because it negatively  affected the amount of compensation I have  received, as a manifested negative outcome, since the error was initially made. 

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

Do you agree that if the 2004 error had not been made, it would follow the subsequent claims, and therefore they would have to account for the error (and hopefully retro) back to the 2004 decision?

It would create CUE in subsequent decisions but if they award this CUE back to 2004, they would have to pay the retro anyhow-- meaning maybe you only need this 2004 decision to file the CUE on?

I am also trying to reduce the CUE you first wrote ,to be as simple for them as possible.

I do hope others chime in....we are getting a thunderstorm warning and that will cause my PC to act up-this was the first really nice day we have had in May. 34 degrees two days ago, 82 degrees today.

BTW I saw you have dealt with a LOT in the MIL, and you did very well on that issue.

And  if you disagree with the date of 2004, please advise.

And add anything else under the 38 4.6 part that was probative to your proper %,if you can but I think you got them on this:

"Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time."

 

Edited by Berta (see edit history)
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₴ 4.6 Evaluation of evidence

This is a CUE under auspices of CUE, 38 USC, 1509A.

 

I have Enclosed copies of the following decisions:

 

Decision letter dated 27Feb04, #2. Under DECISION It references as so “Evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis (DC 5293) which is currently evaluated as 10% disabling, is increased to 20% effective 30Jan03. Page 3, Under REASONS FOR DECISION #2. Evaluation of Status post discectomy an anterior Fusion cervical spine at C5C6 with arthritis currently evaluated as 10% disabling. We granted an increased evaluation of your service-connected neck condition because the evidence shows this condition has worsened. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness. At your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Prior to that decision, a decision letter dated 22May01, page 2 Under DECISION #1. “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis Is granted with an evaluation of 20% effective 20May99.  

Page 3 Under Analysis: paragraphs 1-3 “service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis has been established as directly related to Military service.

An evaluation of 20% is assigned under diagnostic code 5293 from 20May99 the date the claim was received.

 An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine, or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The exam shows decreased range of motion the, X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

 

 a letter dated 8/22/03 from my neurosurgeon at the time from the Neurosurgical Group OF Greater Louisville and Southern Indiana Dr. David A. Petruska, M.D., with My MRI results dated 08/20/03 from Dr. Joy D. Foster, M.D. and Dr. Peter A. Rothchild, M.D. from Open MRI LLC

 

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 27Apr04 It would have increased my rating from for my Status post discectomy and anterior Fusion cervical spine at C5C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage of my VA disability compensation pay.27feb04 spt doc decision ltr.pdf

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berta

thank you for your patience. no apology needed.

Yes i do agree that all other decisions would have been proper.

I was initially awarded 10% for service connection on neck but I disaagree and asked for a reevaluation that letter i can find anywhere. but as you can see they have it noted very well. i did have the decision ltr for the increase of 20% 22may01. they gave me the 20% back to the original effective of 20may99.

now with the decision ltr for 27Feb04 they referenced the 10%instead of the 20% given in may. So this is why you think i should just use the 27feb04 ltr.

i think because i filed the increase 30jan03 that eed  is correct but the percentage is wrong.

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Berta i want to think you for your input you sure do know your stuff. I have had to deal with alot while i was in. and since ive been out this road hasnt been easy either but God has kept me and my family. I was a single mother of two at the time i left the service. it was a struggle pushing through injuries, pain and constantly battling the bureacracy of the va system not knowing the regulations or how to get approved. i just did the best i could. It took me to 2003 before i was awarded enough where my children could be added for benefits. then i was able to get my finances straighten out. then 2004 until they granted me permanent an total unemployability. I failed to look closely at my paperwork and thats not going to ever be the case anymore especially where va is concerned. Its great knowing that there  are people like you and this forum community that can help. because i dont remember anything like this 20+yrs ago. Its a beautiful thing.

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hello berta

what do you think?

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

The VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had:

It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04.

Please see the enclosed supporting documents:

a letter dated 8/22/03 from my neurosurgeon at the time from the neurosurgical group of greater Louisville in southern Indiana Dr. David A Petruska, M.D., with my MRI results dated 8/20/03 Dr. Joy D. Foster, M.D. and Dr Peter A. Rothchild, M.D., from Open MRI LLC.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstrateable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

I feel that the VARO violated my rights under:

₴ 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 consideration of the rating board in arriving at determination of the evaluation of disability. Every element in any way affecting the probate if value to be assigned to the evidence in each individual claim must be thoroughly can consciously studied by each member of the rating board in the light of this established policies of the Department of Veterans affairs to the end that decisions will be equitable and just is contemplated by the requirements of the law 38 CFR 4.6.

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was applied on the decision letter dated 27Feb04 It would have increased my rating for my Status post discectomy and anterior Fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This critical error was detrimental to me because it negatively affected the amount of compensation I have received as a manifested negative outcome since the error was initially made.

 

 

 

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I think it is very well written,and I would not change it-accept to put the 38 CFR 4.6 in sooner, right after

'The VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had'- 

Then 'I feel that the VARO violated my rights under 38 CFR 4.6'. and then 

'It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04.' etc 

I have put that regulation or what every regulations they broke into most of my CUES right away, to gain their attention.

I have PC problems with the weather- hopefully tomorrow AM I can go over all of your downloads better- just to be sure of how you are presenting this.

Broncovet's suggestion is OK too- a different way of saying the same thing.

Be sure to mark  any evidence you enclose, as Exhibit A,B, C, etc and list it at the bottom of your submission- 

or Enclosure #1, # 2 # 3, etc. And if you are mailing this in , make sure you get a proof of mailing

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

VARO Louisville Ky did not thoroughly and Conscientiously study the probative evidence that they had. I feel that the VARO violated my rights under:

₴ 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 consideration of the rating board in arriving at determination of the evaluation of disability. Every element in any way affecting the probate if value to be assigned to the evidence in each individual claim must be thoroughly can consciously studied by each member of the rating board in the light of this established policies of the Department of Veterans affairs to the end that decisions will be equitable and just is contemplated by the requirements of the law 38 CFR 4.6.

The VA’s failure to notate the previous percentage rating properly and not applying the enclosed neurosurgeon’s letter as well as my Open MRI results manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was applied on the decision letter dated 27Feb04 It would have increased my rating for my Status post discectomy and anterior Fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This critical error was detrimental to me because it negatively affected the amount of compensation I have received as a manifested negative outcome since the error was initially made.

It appears that the MRI narrative was not considered, or it was not used in the decision dated 27Feb04.

a letter dated 8/22/03 from my neurosurgeon at the time from the neurosurgical group of greater Louisville in southern Indiana Dr. David A Petruska, M.D., with my MRI results dated 8/20/03 Dr. Joy D. Foster, M.D. and Dr Peter A. Rothchild, M.D., from Open MRI LLC.

Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change. Under this old criteria evaluation of 20% was assigned whenever there was moderate limitation of motion of the cervical spine are demonstratable deformity of a vertebral body from fracture with slight limitation of motion. A higher evaluation of 30% is not warranted unless there is severe limitation of motion of the cervical spine or moderate limitation of motion with demonstratable deformity of a vertebral body from fracture. The results from my MRI indicated a loss of the cervical lordotic curvature with mild scoliosis of the cervical spine convexity to the right. in addition to multi- level disc degeneration. Therefore 30% evaluation was warranted for this disability at that time.

Thank you both I'm going to finish the rest tommorow 

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I have gone over quite a few BVA decisions and believe that your CUE is solid.

I have been reading this statement you got from VA over and over again:

"Page 4, paragraph 2 the decision dated 27Feb04 the rating criteria for evaluating spine and neck conditions changed on September 26, 2003 your increased evaluation is based on the old criteria that was in place prior to September 26, 2003 change."

The letter you had from a Neurosurgeon and also theMRI was dated in August 2003, prior to the September 2003 change date of the DC they used ( 5293)

Maybe I am going nuts- but since the decision was dated Feb 27, 2004, they knew of the change to the ratings schedule, and I wonder why they still applied 5293 to your claim.

I found this mumbo jumbo in a BVA decision:

"3. The criteria for a separate 10 percent evaluation for right lower extremity neurologic manifestations of the service-connected low back disability, from September 23, 2002, have been met. 38 U.S.C.A. งง 1155, 5107 (West 2002); 38 C.F.R. ง 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002, and from September 23, 2002 through September 25, 2003); 38 C.F.R. ง 4.71a, Diagnostic Codes 5237, 5239, 5243 (as in effect from September 26, 2003); 38 C.F.R. ง 4.124a, Diagnostic Code 8520 (2009)."

Then they clarify it:

 

"The schedular criteria for evaluating disabilities of the 
spine have undergone revision twice since the appellant filed 
his claim.  The first amendment, affecting Diagnostic Code 
5293, was effective September 23, 2002.  67 Fed. Reg. 54,345 
(Aug. 22, 2002).  The next amendment affected general 
diseases of the spine and became effective September 26, 
2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003).

Effective prior to September 26, 2003

As in effect prior to September 26, 2003, 38 C.F.R. ง 4.71a, 
Diagnostic Code 5289, provides that a 40 percent evaluation 
is warranted for favorable ankylosis of the lumbar spine.  A 
50 percent evaluation is assigned for unfavorable ankylosis 
of the lumbar spine."

They also state this:

"Effective from September 26, 2003, 38 C.F.R. ง 4.71a, also provides that intervertebral disc syndrome may be rated pursuant to Diagnostic Code 5243 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, or the General Rating Formula for Diseases and Injuries of the Spine (as outlined above), based on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. ง 4.25. The criteria for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged from that which became effective September 23, 2002, as outlined above."

https://www.va.gov/vetapp10/files2/1017852.txt

Finally I found what I was looking for in that decision:

"Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), 
where a law or regulation changes after the claim has been 
filed or reopened, but before administrative or judicial 
process has been concluded, the version of the law most 
favorable to the veteran applies unless Congress provided 
otherwise or permitted the VA Secretary to do otherwise and 
the Secretary did so.  As such, the rating criteria in effect 
prior to September 26, 2003 (except for the revision to DC 
effective from September 23, 2002 through September 25, 2003, 
are for consideration throughout the rating periods on 
appeal, with application of the version of the law most 
favorable to the appellant.  However, the amendment to DC 
5293, effective from September 23, 2002 through September 25, 
2003, and the revisions to the rating schedule effective from 
September 26, 2003, may not be applied retroactively.  Hence, 
in a claim for an increased rating, where the rating criteria 
are amended during the course of the appeal, and the Board 
considers both the former and the current schedular criteria, 
should an increased rating be warranted under the revised 
criteria, that award may not be made effective before the 
effective date of the change.  Kuzma v. Principi, 341 F.3d 
1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. 
App. 308, 312-13 (1991), to the extent it held that, where a 
law or regulation changes after a claim has been filed or 
reopened, but before the administrative or judicial appeal 
process has been concluded, the version more favorable to 
appellant should apply).

Does anyone here feel they should have applied the changed regulation, if it was more favorable then the older one on 5293?

They had the evidence for a higher rating under 5293, and were aware of the DC change made in Sept 2003

but made this decision in Feb 2004.

Kuzma V Principi overruled Karnas.

We have 5293 vets here with similar C-5, C-6 issues I am sure- maybe they will chime in.


 

 

 

 

 

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"In the SOC and the SSOC of September 2001, the veteran was notified of the old rating criteria for his low back disability. He was informed of the new criteria in the SSOC issued in May 2004, at which time the AOJ had the opportunity to determine the applicability of both the old and new rating criteria to the current claim. See Kuzma, supra."

and

"Based on the above analysis, the evidence supports a higher 
evaluation for the veteran's low back disability to 20 
percent disabling.  That is, a 20 percent evaluation is 
authorized under the old criteria at Code 5292 (effective 
prior to September 26, 2003) for moderate limitation in 
lumbar spine motion, and under the new criteria at Code 5237 
(effective on September 26, 2003) for an abnormal spine 
contour.  In addition, the criteria at Code 5237 authorize a 
separate evaluation for the minimal radicular symptoms under 
Codes 8260/8270 effective from February 4, 2004. "

https://www.va.gov/vetapp05/files2/0509857.txt

This case is a little different from the member here but my point is that should Kuzma be raised in the CUE?

It might not be needed but enhancing a CUE with regulations as well as established VA case law,such as Kuzma, can be wonderful.

 

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Just to add Kuzma was a Federal Circuit Court opinion:

It might not be applicable to this CUE above, but sure might help others here:

In part:

"Kuzma argues that the Court of Appeals for Veterans Claims erred by not applying its own precedent as set out in Karnas v. Derwinski, 1 Vet.App. 308 (1991), and Holliday v. Principi, 14 Vet.App. 280 (2001).  Karnas held that “where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and we so hold will apply unless Congress provided otherwise or permitted the Secretary ․ to do otherwise and the Secretary did so.”  1 Vet.App. at 313.   After enactment of the VCAA, but prior to Dyment and Bernklau, the court relied on Karnas to conclude that “all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA's enactment.”  Holliday, 14 Vet.App. at 286.   It reasoned that “there can be no question that Congress, which is presumed to be aware of [Karnas] and its progeny at the time of enacting the VCAA, clearly did not provide the specificity required by Karnas to disavow retroactivity.”  Id.

Because neither we nor the Court of Appeals for Veterans Claims have explicitly overruled Karnas, Kuzma argues that it is still controlling precedent in the Court of Appeals for Veterans Claims.   Therefore, that court was bound to follow it and remand the case to the board for readjudication.   The government responds that both Dyment and Bernklau implicitly overruled Karnas.   We agree.

We are obligated to apply both Supreme Court precedent, see Williams v etc,etc:

https://caselaw.findlaw.com/us-federal-circuit/1410796.html

Oddly enough ,  Bernklau's "wife" got in touch with me after he died, (he had found my email here many many years ago and called me up to be on some radio show with him. He just wanted to gripe  about the VA and did not even seem to  have a valid claim.

 , and after he died  this woman tried to pull something on the CAVC. I emailed the CAVC and got that attempt to deceive the court resolved. She was not his wife , and she did not even advise the Court that he had died. She thought the court would grant his claim, and she wanted to get any money they owed him. Some people will do anything they can for money.This was around the same time that a member emailed me for a Buddy statement- like I had witnessed something in the Navy that happened to him, and was onboard ship with him at the time-to prove his case-

But there were no women serving aboard ships when this happened and , he knew I was a civilian. I closed my email addy here forever. 

 

 

 

 

Edited by Berta (see edit history)
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Berta,  they actually used Dc 5241 on the rating decision but if you noticed they didn't use it anywhere in the letter rated me under the old criteria

So do you think I should make any reference to the law requiring them to use the old material why just leave that alone

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I missed that-

I wonder even if the 5293 originally was the right DC.

 

Dr Anaise ,who wrote this article has helped many vets here with their claims.I think he requires an inperson exam, and his fees do not seem to be too high:

http://www.danaise.com/understand-the-new-rating-for-back-and-neck-spinal-disability/

He certainly seems to know his stuff- I regret I am not good at all on these types of conditions-because they seem to involve many diagnositic codes.

One thing I did learn is that these conditions might have caused some of  your secondary conditions that you now have.VA is so dumb that a claim for secndarys might well need an IMO/IME- an opinion from a real doctor, with a full rationale associating the secondary condition to the main C5-C6 disability.

5241 is included here:

General Rating Formula for Diseases and Injuries of the Spine  
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):  
With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease  
Unfavorable ankylosis of the entire spine 100
Unfavorable ankylosis of the entire thoracolumbar spine 50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  
Note (4): Round each range of motion measurement to the nearest five degrees.  
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  
5235 Vertebral fracture or dislocation  
5236 Sacroiliac injury and weakness  
5237 Lumbosacral or cervical strain  
5238 Spinal stenosis  
5239 Spondylolisthesis or segmental instability  
5240 Ankylosing spondylitis  
5241 Spinal fusion  
5242 Degenerative arthritis of the spine (see also diagnostic code 5003)  
5243 Intervertebral disc syndrome  
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25 .  
All long bunch of other stuff came out on the paste:  
With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60
With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40
With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20
With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10
Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  
Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  
er27au03.003.gif

The Hip and Thigh

  Rating
5250 Hip, ankylosis of:  
Unfavorable, extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated 3 90
Intermediate 70
Favorable, in flexion at an angle between 20° and 40°, and slight adduction or abduction 60
5251 Thigh, limitation of extension of:  
Extension limited to 5° 10
5252 Thigh, limitation of flexion of:  
Flexion limited to 10° 40
Flexion limited to 20° 30
Flexion limited to 30° 20
Flexion limited to 45° 10
5253 Thigh, impairment of:  
Limitation of abduction of, motion lost beyond 10° 20
Limitation of adduction of, cannot cross legs 10
Limitation of rotation of, cannot toe-out more than 15°, affected leg 10
5254 Hip, flail joint 80
5255 Femur, impairment of:  
Fracture of shaft or anatomical neck of:  
With nonunion, with loose motion (spiral or oblique fracture) 80
With nonunion, without loose motion, weightbearing preserved with aid of brace 60
Fracture of surgical neck of, with false joint 60
Malunion of:  
With marked knee or hip disability 30
With moderate knee or hip disability 20
With slight knee or hip disability 10

3 Entitled to special monthly compensation.

The Knee and Leg

  Rating
5256 Knee, ankylosis of:  
Extremely unfavorable, in flexion at an angle of 45° or more 60
In flexion between 20° and 45° 50
In flexion between 10° and 20° 40
Favorable angle in full extension, or in slight flexion between 0° and 10° 30
5257 Knee, other impairment of:  
Recurrent subluxation or lateral instability:  
Severe 30
Moderate 20
Slight 10
5258 Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint 20
5259 Cartilage, semilunar, removal of, symptomatic 10
5260 Leg, limitation of flexion of:  
Flexion limited to 15° 30
Flexion limited to 30° 20
Flexion limited to 45° 10
Flexion limited to 60° 0
5261 Leg, limitation of extension of:  
Extension limited to 45° 50
Extension limited to 30° 40
Extension limited to 20° 30
Extension limited to 15° 20
Extension limited to 10° 10
Extension limited to 5° 0
5262 Tibia and fibula, impairment of:  
Nonunion of, with loose motion, requiring brace 40
Malunion of:  
With marked knee or ankle disability 30
With moderate knee or ankle disability 20
With slight knee or ankle disability 10
5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10

The Ankle

  Rating
5270 Ankle, ankylosis of:  
In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity 40
In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° 30
In plantar flexion, less than 30° 20
5271 Ankle, limited motion of:  
Marked 20
Moderate 10
5272 Subastragalar or tarsal joint, ankylosis of:  
In poor weight-bearing position 20
In good weight-bearing position 10
5273 Os calcis or astragalus, malunion of:  
Marked deformity 20
Moderate deformity 10
5274 Astragalectomy 20

Shortening of the Lower Extremity

  Rating
5275 Bones, of the lower extremity, shortening of:  
Over 4 inches (10.2 cms.) 3 60
3 1/2 to 4 inches (8.9 cms. to 10.2 cms.) 3 50
3 to 3 1/2 inches (7.6 cms. to 8.9 cms.) 40
2 1/2 to 3 inches (6.4 cms. to 7.6 cms.) 30
2 to 2 1/2 inches (5.1 cms. to 6.4 cms.) 20
1 1/4 to 2 inches (3.2 cms. to 5.1 cms.) 10
Note: Measure both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Not to be combined with other ratings for fracture or faulty union in the same extremity.  

3 Also entitled to special monthly compensation.

The Foot

  Rating
5276 Flatfoot, acquired:  
Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances  
Bilateral 50
Unilateral 30
Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:  
Bilateral 30
Unilateral 20
Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral 10
Mild; symptoms relieved by built-up shoe or arch support 0
5277 Weak foot, bilateral:  
A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness:  
Rate the underlying condition, minimum rating 10
5278 Claw foot (pes cavus), acquired:  
Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity:  
Bilateral 50
Unilateral 30
All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads:  
Bilateral 30
Unilateral 20
Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads:  
Bilateral 10
Unilateral 10
Slight 0
5279 Metatarsalgia, anterior (Morton's disease), unilateral, or bilateral 10
5280 Hallux valgus, unilateral:  
Operated with resection of metatarsal head 10
Severe, if equivalent to amputation of great toe 10
5281 Hallux rigidus, unilateral, severe:  
Rate as hallux valgus, severe.  
Note: Not to be combined with claw foot ratings.  
5282 Hammer toe:  
All toes, unilateral without claw foot 10
Single toes 0
5283 Tarsal, or metatarsal bones, malunion of, or nonunion of:  
Severe 30
Moderately severe 20
Moderate 10
Note: With actual loss of use of the foot, rate 40 percent.  
5284 Foot injuries, other:  
Severe 30
Moderately severe 20
Moderate 10
Note: With actual loss of use of the foot, rate 40 percent.  

The Skull

  Rating
5296 Skull, loss of part of, both inner and outer tables:  
With brain hernia 80
Without brain hernia:  
Area larger than size of a 50-cent piece or 1.140 in 2 (7.355 cm 2) 50
Area intermediate 30
Area smaller than the size of a 25-cent piece or 0.716 in 2 (4.619 cm 2) 10
Note: Rate separately for intracranial complications.  

The Ribs

  Rating
5297 Ribs, removal of:  
More than six 50
Five or six 40
Three or four 30
Two 20
One or resection of two or more ribs without regeneration 10
Note (1): The rating for rib resection or removal is not to be applied with ratings for purrulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity.  
Note (2): However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis.  

The Coccyx

  Rating
5298 Coccyx, removal of:  
Partial or complete, with painful residuals 10
Without painful residuals 0
(Authority: 38 U.S.C. 1155)
[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct. 2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 67 FR 48785, July 26, 2002; 67 FR 54349, Aug. 22, 2002; 68 FR 51456, Aug. 27, 2003; 69 FR 32450, June 10, 2004; 80 FR 42041, July 16, 2015]
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"Berta,  they actually used Dc 5241 on the rating decision but if you noticed they didn't use it anywhere in the letter rated me under the old criteria

So do you think I should make any reference to the law requiring them to use the old material why just leave that alone"

After reading it all -I would leave it out of the CUE Carmand-you are right-

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