CUE: Applied §4.59 instead of DeLuca, Hicks, § 4.40, and § 4.45

[Vync]

Hello everyone,
Here is another final draft CUE which might be ready to be submitted to the VA. The decision maker failed to follow the laws in effect at the time. The decision maker applied §4.59 only instead of applying DeLuca, Hicks, § 4.40, and § 4.45. No judgement call factors.

Please feel free to tear it apart and offer any suggestions. I wanted to keep it short, explain the error, include excerpts from evidence, and include laws in effect at the time. The meat of it is in the first section.

Quote

Request for motion to revise due to Clear and Unmistakable Error

Dear VA,
The March 6, 2000, rating decision awarded 10% for internal derangement of the right temporomandibular joint.  The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the initial rating percentage of 10%.

With respect to the rating of musculoskeletal joint disabilities, the Court has held that the Board must consider the application of 38 CFR § 4.40 (1999) regarding functional loss due to joint pain on use or during flare-ups, and 38 CFR § 4.45 (1999) regarding weakness, fatigability, incoordination, or pain on movement of a joint.

The December 17, 1997, C&P exam found “pain and discomfort on opening beyond 29 mm, but opened to max ROM 42 mm”. Because 38 CFR § 4.150 (code 9905) defined 10% rating criteria as “31 to 40 mm”, the max ROM of 42 mm failed to meet the minimum 10% rating criteria. The decision maker quoted from 38 CFR §4.59 to “recognize painful joints due to healed injury as being entitled to the minimum compensable rating” and awarded a 10% rating.

Had the decision maker followed DeLuca v. Brown, Hicks v. Brown, 38 CFR § 4.40, and 38 CFR § 4.45, they would have recognized “pain and discomfort on opening beyond 29 mm” and instead of solely relying on 38 CFR §4.59. Because 38 CFR § 4.150 (code 9905) defined 20% rating criteria as “21 mm to 30 mm”, a 20% rating should have been awarded instead of a 10% rating. Had this error not occurred, the outcome would have been manifestly changed.

Pertinent Excerpts from the March 6, 2000, rating decision

EVIDENCE:
BVA remand dated 03-02-99.
Outpatient treatment reports from VAMC Birmingham, AL, for the period 08-17-95 to 12-04-96 received 03-26-99.
VA examinations dated 10-22-99 and 11-05-99 at the VAMC Birmingham, AL.
Review of the veteran’s claim file.

REASONS AND BASES:
4.

He had headaches, difficulty chewing, limited opening, and a loud clicking and popping on attempts to open fully. He was found to open to 29 mm, experience a loud click, and then go on to open to 42 mm. He responds to pain and discomfort on opening beyond 29 mm.

This condition is evaluated as 10 percent disabling from (April 1995).

An evaluation of 10 percent is granted whenever there is indication of limited inter-incisal movement between 31 and 40 mm, or lateral excursion between 0 and 4 mm. A higher evaluation of 20 percent is not warranted unless there is limited inter-incisal movement between 21 and 30 mm. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.

Pertinent Excerpts from the December 17, 1997 C&P Exam

He had headaches, difficulty chewing, limited opening, and a loud clicking and popping on attempts to open fully. He was found to open to 29 mm, experience a loud click, and then go on to open to 42 mm. He responds to pain and discomfort on opening beyond 29 mm.

Law in effect at the time of the rating decision

For disabilities evaluated on the basis of limitation of motion, as TMJ disability is, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment, including weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995)

See Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (noting that under 38 C.F.R. § 4.59, painful motion is considered limited motion even though range of motion is possible beyond the point when pain sets in)

38 CFR § 4.40 Functional loss
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.
[1999]

38 CFR § 4.45 The joints
As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.
[1999]

38 CFR § 4.59 Painful motion
With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.
[1999]

38 CFR § 4.150 - Schedule of ratings - dental and oral conditions

9905   Temporomandibular articulation, limited motion of:
Inter-incisal range:
 0 to 10 mm . . . . . 40
11 to 20 mm       . . . . . 30
21 to 30 mm       . . . . . 20
31 to 40 mm       . . . . . 10
Range of lateral excursion:
0 to 4 mm . . . . . . 10

Note—Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion
[59 FR 2530, Jan. 18, 1994]

 

 

Edited August 26, 2019 by Vync

[GeekySquid]

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[broncovet]

Berta would say to include 38 CFR 4.6 in your CUE, so dont leave home without your American express (38 CFR 4.6 Cue card). 

This says they have to apply all regulations, not just a select few and ignore others.   

[Vync]

On 8/27/2019 at 5:05 AM, broncovet said:

Berta would say to include 38 CFR 4.6 in your CUE, so dont leave home without your American express (38 CFR 4.6 Cue card). 

This says they have to apply all regulations, not just a select few and ignore others.   

Got it! Thanks!

Essentially, that exactly what they did. They applied 4.59 and seemed to ignore 4.40 and 4.45...