So is this a Clear Error

[ROMAD]

I was reviewing my Rating Decision from 1993 and I noticed that the requirements for a higher 50% rating required "very frequent" attacks versus the lower 30% rating  that required once per month. In the previous paragraph in the decision they mention my attacks last 3 to 6 months with 3- 10 attacks per day lasting as long as several hours. They rated me at 30 percent. Does this seem wrong to anyone else? They also did not list my arthralgia as service connected even though it was within a year of separating from active duty. I thought my lay statement should have been enough for that to be part of the record but it is not. Is this a CUE also? Documents are attached. Thanks in advance for any feedback that may be helpful.

 

Sanitized1.pdf Sanitized2.pdf

[Berta]

Was the arthralgia claim the same as the bilateral shoulder claim in 1995?

If so ,you will need to have new and relevant evidence to re -open that claim with.If the VA awards a new claim, then maybe there was a CUE in the original denial but so far, I don't think there was a CUE for that claim.

The headache claim- you need to search the diagnostic code they used in the past for this and then go to the VA Schedule of Ratings here ( Separate forum below) and find those DCs there and what evidence you needed to have, that would have warranted a higher than 30% rating. If the VA did have evidence of a higher rating than the 30% then that might well be a valid CUE.

But for all CUEs, we need to see the actual decisions and the evidence list they used.

CUEs often rest on the Watergate question:

What did the VA know and when did they know it?

 

 

 

[broncovet]

I agree with Berta...we need to see the decision.  However, we would also need to see your entire file, to determine if you deserve an EED.  That is what this Cue, and most cue's are about ...the effective date.  Otherwise, just apply again and let VA hornswaggle you on the effective date.  

"Grabbing your Cue stick" isnt always necessary unless you are playing pool.   

A huge question that I cant answer is:

 

Quote

Did you send the VA "new evidence" between 1993 and the present?

If you did, then the VA should have "reopened" the claim due to 38 CFR 3.156 B or 3.156 C.  Now, you have to call them on THAT error.  They probably wont even notice that you send them a new medical exam in 1994, that confirms what you posted.  And, they wont reopen it.  If you can, you are better off to "pry it open" like a clamshell.  You can then enjoy your clams and your retro.  MMMMMMMM

Of course, it is still possible that its Cue.  But, if you are enjoying a clamfest on your retro due to reopening from 3.156, you probably wont concern yourself if its CUE.  

Edited December 5, 2019 by broncovet

[ROMAD]

Thank you Berta for the reply, The Arthralga I have never been seen for since they told me it was not service connected (even though it was) I have just lived with it by not lifting over my head and being careful how I push. But the Cluster Headaches caused me to be Med Boarded out of the Air Force so they had all the documentation about my symptoms and severity. I will check the VA Schedule of Ratings to see the requirements. Thanks again for the feedback. I attached the exam to my original post, would I need other info to determine what they knew and when? It seems like that attachment has all the facts.

 

 

[ROMAD]

The Rating Decision is attached Sanitized2.pdf and the Exam is attached as Sanitized1.pdf

 

 

[broncovet]

Romad..

    No, the exam is not all of it.  You also have to have the decision.  Let me give an example, and I dont know if this applies to you or not.

Lets say your decision states "something like" this:

    

Quote

While the rating schedule specifies "very frequesnt" attacks as criteria for the 30 percent category, these frequent attacks occurred only for the past 3 months.  So, the preponderance of the evidence suggests that the Veteran's condition more closely approximates the 10 percent category, because there is no assurance the most recent 3 months is not just an "episodic" change, and that the Veteran will likely go back to less frequent headaches, in the future, as he did the past 12 years.  

In other words, the decision maker CAN give a reasons and bases for his decision, justifying why he awarded the lower percent.  This means its a judgement call, and judgement calls are not CUE.  Frankly a disabilty percentage is often a judgement call, and those Cue's are tough to win.  The reason is that the criteria is often vague and it is not always necessary for the Veteran to meet "all" of the criteria.  Very often, he has symptoms in the 30 percent category, the 10 percent category, and the 50 percent category.  This is because its often "subjective".  The VA did not give you a meter reading that said..."50 percent rating".  

With some ratings, like hearing loss, there are "numbers" and you either meet the higher criteria or you dont.  So, VA usually gives zero percent hearing loss ratings because those schedule of hearing loss numbers are so bad, if you can hear the audiologist well enough to sit down when she tells you, then your hearing is only worth zero percent.  

[broncovet]

Thank you.  I just read the decision.  It sounds like you sent additional evidence in 1994 and 1995, based on the decision.  This should have reopened the claim and probably warranted an increase, based on the 1994-1995 evidence.  

This sounds like a "staged" Fenderson rating to me.  A staged rating would be, for example, if you got 30 percent from 1993to 1994, and then 50 percent from 1994 to present.  

You can read about staged (Fenderson) ratings.  

Based on what I have read so far, the VA should have reopened your rating in 1994through 1995 for an increase, but Cue is fuzzy to me.