Restless Leg Syndrome CUE - Revised

[Justaskpat]

If anyone has time to take a look, I'd appreciate all comments, suggestions, etc. Thank you.

Also wondering if using 38 CFR 4.3 is a good idea or bad idea.

9/30/2019 deleted working draft. will start new threat when new CUE draft is complete. Need to take a step back and rethink this. 

 

 

Edited October 1, 2019 by Justaskpat
deleted working draft.

[Berta]

This CUE is very well written.

I however would leave out 38 CFR 4.3,because if the CUE is granted ,38 CFR 4.3 will kick in.

What is the diagnostic code they used for the denial?

In this case the BVA found that they used the wrong DC and if a wrong DC has caused a denial to a veteran's detriment( meaning the evidence would warrant a rating at least at 10%, that is a bonafide CUE.

 

"Readjudicate all claims properly prepared for appellate review.  In so doing, consider whether the Veteran’s restless leg syndrome is more appropriately rated under DC 8103, which governs convulsive tics, or another DC other than 8520.  Also consider the Veteran’s claim of entitlement to a TDIU, a component of his claims for increased ratings.

Readjudicate all claims properly prepared for appellate review.  In so doing, consider whether the Veteran’s restless leg syndrome is more appropriately rated under DC 8103, which governs convulsive tics, or another DC other than 8520.  Also consider the Veteran’s claim of entitlement to a TDIU, a component of his claims for increased ratings."

 

https://www.va.gov/vetapp19/files6/19147886.txt

In this denial however the BVA refers to a different diagnostic code regarding his restless leg syndrome.

DC 8721

https://www.va.gov/vetapp19/files5/19141413.txt.

The DC probably is different due to the circumstances of the claim---- I am not sure- but the proper diagnostic code that matches your situation would be in the VA SRD  forum on our main page.

Did you ever, prior to the denial have a "buddy statement" from any significant other, that described,since you were asleep, how difficult it was to sleep with you? 

Reason I ask is that, if this type of letter had been established prior to the decision,it possibly could have helped,if they ignored it ,under 38 CFR 4.6.

 

My girl friend's boy friend moved in with her years ago, and she had to put her bed into a different room because his RLS was so bad she could not sleep through the night.He is a vet but never claimed it-no inservice connection.

I will read the CUE again and post anything else I can find.

 

 

[broncovet]

First, you did a great job.  I agree, that you should not include 4.3 (BOD) to support your CUE.  BOD is not consistent with CUE.  

You cited evidence and regulation to support your CUE allegations.  Very good.  

Now, you have to demonstrate you meet all the cue criteria.  Without looking the CUE criteria up, you must meet the minimum CUE criteria:

1.  That the error was undebatable.

2.  That the error was based on regulations and evidence AT DECISION TIME.  If the VA did not have a particular examiner report, this would not be cue but be 38 cfr 3.156, a request to reopen. 

3.  Most importantly, you need to show what the error was outcome determinative.  This is where many Vets fail at their cue.  You have to demonstrate that restless leg syndrome warrants a xx percent rating. and, with the mistake they made, you should have gotten x percent.

    Its my opinion this is a great CUE, but may fall short in the outcome determinative department unless you can demonstrate YOUR level of symptoms documented in your records equal a percentage rating defined by the rating schedule for your condition.  Cover the Caluza elements.   

Edited September 26, 2019 by broncovet

[Berta]

In this denial however the BVA refers to a different diagnostic code regarding his restless leg syndrome.

DC 8103

 

https://www.va.gov/vetapp19/files6/19147886.txt

DC 8721

https://www.va.gov/vetapp19/files5/19141413.txt

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

8103   Tic, convulsive:
Severe	30
Moderate	10
Mild	0
Note: Depending upon frequency, severity, muscle groups involved.

 

8721   Neuralgia.  No rating info at all..?

https://www.ecfr.gov/cgi-bin/text-idx?SID=e66b2cd14b79161de37755359630a0e6&mc=true&node=se38.1.4_1124a&rgn=div8

I hope our VA Schedule of Ratings here is up to date-

This BVA decisions has those rating:

Under DC 8721, mild incomplete neuralgia of the external popliteal nerve warrants the current 10 percent rating.  38 C.F.R. § 4.124a.  Moderate incomplete neuralgia of the external popliteal nerve warrants a 20 percent rating.  38 C.F.R. § 4.124a, DC 8721.  Severe incomplete neuralgia of the external popliteal nerve warrants a 30 percent rating.  Id.  Complete paralysis of the external popliteal nerve with foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension (dorsal flexion) of proximal phalanges of the toes; lost abduction of the foot; weakened adduction; and anesthesias covering the entire dorsum of the foot and toes warrants a 40 percent disability rating.  Id.

https://www.va.gov/vetapp17/files7/1740793.txt

Have you already scanned and attached their denial here?

If not, cover your C file #, name, prior to scanning it.

The CUE looks very good, but without seeing the words of the denial and their rationale, and also the DC they used, it is hard to accurately comment.

 

[GeekySquid]

I agree with Bronco and Berta, this is pretty well formed.

I would suggest that you revise to remove the "I" and "you" phrasing.

This is supposed to be dry as sand.

Fact Law Fact Law Fact Law.

As Bronco points out, it must be unmistakable what the error is. Adding emotional and personal words clouds that reading.

If you feel you need a narrative to explain, then you may not have a CUE or the writing is not strong enough on it's own.

If you feel you need a narrative or timeline, add it as a separate exhibit and cite as any other exhibit.

In formatting, I would suggest looking at the parts where you say Sentence 1, Sentence 2, etc. and reformat that to be an inclusive opening statement citing Exhibit, 1, page, 3, Sentences 1, 4, 5, 7

and then list them as bullets under that statement. It adds clarity, ease of following and form if you structure it that way.

[Justaskpat]

11 hours ago, Berta said:

diagnostic code they used

Hi Berta. A response I wrote you on this disappeared just now, so here goes round 2! I hope I remember everything I was trying to say! First of all, thank you for taking the time to read my CUE, I know you are very busy. I took out the 4.3. As to DCs, there are no DCs listed anywhere on the decision or the C&P report. Re 8103; in the initial version of this CUE I had included a couple sentences about 8103 Tics, then I deleted them because I wasn't sure about including it. From what I understand, and correct me if I'm wrong, because there's a good possibility that I am, on a CUE, one cannot change DCs. For instance, if they were trying to rate a person under a certain code and issued a denial, I thought I remembered reading one cannot "counter offer" in a CUE by showing it fits the requirements of a different DC. I was shooting for, hoping for 10% for each leg and believe the proof is there. I looked up the VARSD for RLS and found it under 8620 Sciatic nerve (neuralgia). I had included a sentence about 8620 in the CUE, but now think that may not be a wise thing to do...  I just uploaded everything I had from the decision on the denial. I put it above, on the initial post, so all docs will stay together in one spot.

[Justaskpat]

8 hours ago, GeekySquid said:

Fact Law Fact Law Fact Law

Working on that. also on format (thank you). most all the "I"s you saw are in direct quotes from the C&P Report. I'm going over this CUE to make certain there are no I, ME, YOU's, etc.  making sure no personal comments. thought I did a pretty good job there, but did find a sentence and a comment I removed.