CUE: Pre-service aggravation % reduction

[Vync]

Hello everyone,
I have been chewing on this one for quite a while and believe this final draft CUE is ready to be submitted to the VA. The decision maker failed to follow the laws in effect at the time. No judgement call factors.

Please feel free to tear it apart and offer any suggestions. I wanted to keep it down to about two pages, explain the error, include excerpts from evidence, and include laws in effect at the time.

 

Quote

 

Request for motion to revise due to Clear and Unmistakable Error

Dear VA,
The March 6, 2000, rating decision awarded 30% for allergic rhinitis/sinusitis, but a pre-service reduction of 10% was applied and resulted in a 20% rating. The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the pre-service level of disability.

38 CFR § 3.322(a) requires the pre-service level of disability to be ascertained in terms of the schedule, otherwise no reduction is allowed.

In terms of the schedule, 38 CFR § 4.97 (code 6522) defines 10% rating criteria as, “Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side.”

The decision maker stated, “Prior to service, the disability is considered 10 percent disabling based on evidence that showed that he always had problems of recurrent rhinitis.” This is clearly not in terms of the rating schedule and is a clear and unmistakable error.

The decision maker also noted, “On the veteran's entrance examination he reported problems with his nose but the findings of the exam were normal”. 38 U.S.C. § 1111 Presumption of Sound Condition should be applied and is a clear and unmistakable error.

Had the decision maker followed 38 CFR. § 3.322(a), they would have found the 10% rating criteria in 38 CFR § 4.97 (code 6522) to be completely different than the fabricated criteria used to justify the 10% rating reduction. The decision maker should have found the pre-service level of disability to be 0%. The awarded rating should not have been reduced to 20% and should have remained at 30%. Had this error not occurred, the outcome would have been manifestly changed.

Pertinent Excerpts from the March 6, 2000, rating decision

REASONS AND BASES:
2.

A review of the record shows that the veteran was treated for numerous complaints of allergic rhinitis during service and that he gave a history of always having rhinitis. On the veteran's entrance examination he reported problems with his nose but the findings of the exam were normal.

The VA examiner on the examination of 10-22-99 opined that the veteran obviously had allergic problems before entering service that got worse while he was in service.

The difference between disability evaluations before and after military service determines the degree of disability subject to service connection. The preservice percentage is always deducted before assigning any service-connected evaluation less than 100 percent. Prior to service, the disability is considered 10 percent disabling based on evidence that showed that he always had problems of recurrent rhinitis.

Law in effect at the time of the rating decision

38 CFR § 3.322 Rating of disabilities aggravated by service.
(a)Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.[26 FR 1583, Feb. 24, 1961]

38 CFR § 4.97 - Schedule of ratings - respiratory system.
6522  Allergic or vasomotor rhinitis:
  With polyps................................................ 30
  Without polyps, but with greater than 50-percent
     obstruction of nasal passage on both sides or complete            
     obstruction on one side................................. 10
[61 FR 46728, Sept. 5, 1996]

 

 

 

 

Edited August 26, 2019 by Vync
Added 38 USC and 38 CFR references

[GBArmy]

Just guessing: you are harmed; don't you have to state HOW you are harmed in the claim? i.e. financial deprivation?

[GeekySquid]

Hey Vync

read this by chris Attig, https://www.veteranslawblog.org/presumption-of-soundness/

also I noted you did not cite 38 U.S.C. § 1111 presumption of soundness specifically.

7 hours ago, Vync said:

The decision maker also noted, “On the veteran's entrance examination he reported problems with his nose but the findings of the exam were normal”. The presumption of soundness should be applied and is a clear and unmistakable error.

Here you need to scour the evidence listed for that other evidence. Follow Attig's advice. Did you just put on the form you have nasal problems? did they send you for an evaluation or specific exam? if not that it does not meet the evidentiary level necessary to be a medical fact. It is just a "note".

According to Attig, if the VA does nothing more than let you list it as a problem but does not investigate you are presumed to be sound, without defect. Meaning the rate erred in not presuming you sound upon entrance to the service. Now that argument may create a different problem if you don't have an in-service nexus and are only claiming as an aggravation.

[Vync]

12 hours ago, GBArmy said:

Just guessing: you are harmed; don't you have to state HOW you are harmed in the claim? i.e. financial deprivation?

Financially, yes. The original combined rating was 40% (20/10/10/10). Any increase would boost me to 50% from 1995 to 2008, so retro potential is good.

[Vync]

8 hours ago, GeekySquid said:

Hey Vync

read this by chris Attig, https://www.veteranslawblog.org/presumption-of-soundness/

also I noted you did not cite 38 U.S.C. § 1111 presumption of soundness specifically.

Here you need to scour the evidence listed for that other evidence. Follow Attig's advice. Did you just put on the form you have nasal problems? did they send you for an evaluation or specific exam? if not that it does not meet the evidentiary level necessary to be a medical fact. It is just a "note".

According to Attig, if the VA does nothing more than let you list it as a problem but does not investigate you are presumed to be sound, without defect. Meaning the rate erred in not presuming you sound upon entrance to the service. Now that argument may create a different problem if you don't have an in-service nexus and are only claiming as an aggravation.

I appreciate you reading my draft.

On the medical history, I checked problems with the nose. The entrance exam was typical, not special. They didn't do scans of my head. The only things noted by the doctor was eyeglasses/refractive error and acne.

I checked the C&P exam and found this:

Quote

One can imply that his condition (allergic rhinitis/sinusitis) got worse while he was in the service

I checked the award letter and found this:

Quote

A review of the record shows that the veteran was treated for numerous complaints of allergic rhinitis during the service period and he gave a history of always having rhinitis.
...
The veteran has sought service connection for his allergic rhinitis since discharge and has an extensive record of complaint of, and treatment for, this problem since service. The 11-20-97 exam which diagnosed allergic rhinitis/sinusitis and noted his disease appears to be permanently originating in his nose and has progressed to having polypoid changes of his nasal mucosa which causes obstruction and subsequent rhinosinusitis. Obstruction was 100 percent on the left and 75 percent on the right with significant septal deviation to the left. His condition was significantly debilitating at that time.
...
Resolving reasonable doubt for the veteran service connection is granted for allergic rhinitis/sinusitis.
...
Service connection for allergic rhinitis/sinusitis has been granted because this condition, which existed prior to military service, permanently worsened as a result of service.

That's a big jump from showing my nose was normal when I joined to meeting the maximum 30% criteria when I got out.

[GeekySquid]

30 minutes ago, Vync said:

One can imply that his condition

I am fairly sure that "implying" is not supposed to be the basis for a medical opinion. In fact it is also grammatically incorrect. I "imply", You "infer"; The speaker/writer makes a statement that the hearer/reader takes to mean something that is not directly stated.

33 minutes ago, Vync said:

a history of always having rhinitis

so you popped out of the womb and complained of rhinitis?

 

34 minutes ago, Vync said:

because this condition, which existed prior to military service,

again, what is the evidence of this. Go back to the Chris Attig link I shared. If during your induction you were not specifically examined by a competent medical professional on this issue and those results recorded with your entrance physical, then you were PRESUMED to be 100% "normal" without defect. That means this is direct service connection instead of aggravation of an NSC.

As I mentioned if you don't have an in service nexus that might be a challenge. However you do document there is significant in-service medical evidence.

This will be informative to see how it plays out.

Good Luck

[Vync]

@GeekySquid you have a keen eye.

5 hours ago, GeekySquid said:

I am fairly sure that "implying" is not supposed to be the basis for a medical opinion. In fact it is also grammatically incorrect. I "imply", You "infer"; The speaker/writer makes a statement that the hearer/reader takes to mean something that is not directly stated.

I think this was one of those C&P doctors who types with one finger and in all caps.

5 hours ago, GeekySquid said:

so you popped out of the womb and complained of rhinitis?

Lol, no. 

5 hours ago, GeekySquid said:

again, what is the evidence of this. Go back to the Chris Attig link I shared. If during your induction you were not specifically examined by a competent medical professional on this issue and those results recorded with your entrance physical, then you were PRESUMED to be 100% "normal" without defect. That means this is direct service connection instead of aggravation of an NSC.

As I mentioned if you don't have an in service nexus that might be a challenge. However you do document there is significant in-service medical evidence.

This will be informative to see how it plays out.

One important factor is the current 20% rating has been in effect since 1995 (24 years), so it is be protected by the 20 year rule.

I have a mountain of in-service medical treatment evidence. It is very clear that the condition increased in severity and in the number of treatment visits while in service. The VA has treated me for it since I got out in 1995.

 

My situation might be like this veteran's situation. The veteran self-reported having eczema and was found to be normal at the time he joined. The first objective indication of having it appeared while he was in the service. He won direct SC. His case was for initial SC though, not correction of a rating percentage.

Quote

 

https://www.va.gov/vetapp10/files5/1040625.txt

Because, for all intents and purposes, there was no pre-existing psoriasis, the issue of aggravation is no longer in play because there was no pre-service disability to possibly worsen. Rather, it is presumed the Veteran was in sound health when entering service and had no skin disorder. The only remaining consideration, then, is whether his skin disorder initially manifested while in service.

 

 

Maybe the VA should have originally treated mine as a direct SC issue instead of aggravation. However, the issue of direct vs. aggravation is probably moot now because of the 20 year rule.

Makes me wonder if I should even bother including the part about normal at entrance and presumption of soundness.