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

[broncovet]

There is a presumption, but I cant say for sure the regulation was established in 1995.  Here is the presumption (in lay terms):

You go into the service, and its Presumed your doctor did a good job examining you pre service.   Unless a condition was noted on your medical exam, you are presumed healthy.  

Now, you serve in the military.  Now you have some sort of disorder, say a dislocated shoulder at your exit exam or within a year of your discharge.  Absent a rebuttal from VA, its presumed you got that in service.  

(A rebuttal would be something like you had a car accident 7 months after exit from service which caused your condition).  

However, absent evidnece to the contrary, your condition was caused by service if it was not noted in your pre entrance exam and was noted in your exit exam.  

Edited December 6, 2019 by broncovet

[broncovet]

There is another "cue alternative", here.  (The first cue alternative is to reopen due to N and m evidence).  

You could re apply for the condition.   If awarded, you can appeal the effective date of the decision if its NOT the day after service, provided that you can document that you applied within a year of military service.  

I always recommend "cue alternatives", when possible, because cue requires the Veteran surrender "benefit of the doubt", while the alternatives do not. 

Cue standard of review:  1.  Must be undebatable. (Veteran is not given benefit of the doubt with cue).   2.  It must be based on the regulations and evidence available at the time of decision.  3.  It must be outcome determinative error.  

     Not all errors rise to the Cue level.  You must meet the criteria that I have paraphrased, above, to be Cue.  

[Berta]

You said:

"I am rated 50 percent and have been since 2006. I had not noticed that I met the requirements even  when I was MED Boarded out of the AF. I was wondering if I should have had that rating beginning in 1993 since nothing changed between 1993 and 2006. So  I had prostrating attacks lasting for hours  and  continuing for month...etc"

" So I was just looking for another set of eyes to see if I should or am eligible for CUE because they did not rate me properly in 1993, so just from 93 to 2006."

If the VA had medical evidence that warranted the 50% rating from 1993 to 2006, the that is a CUE, since it appears that those ratings have not changed.

It would be a CUE under 38 CFR 4.6:

 

"§ 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."

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

we have CUE templates here.

The Chronic Presumptive regulations state:

"What are “Presumptive” Conditions? If you are diagnosed with a chronic disease within one year of active duty release, you should apply for disability compensation. Examples of chronic disease include: arthritis, diabetes or hypertension."

https://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/presumption.pdf

In some cases arthralgia could involve arthritis which is a chronic presumptive.But I think VA only saw the arthralgia diagnosis and did not have to consider arthritis.

However you could re- open the claim-with new and relevant evidence, as Broncovet said, ......and give them copies of all treatment records for as long as you have been treated for this-to show it is chronic.

Do you have the X ray or the findings of it? Perhaps a IME doctor would call it arthritis instead of 

arthralgia because sometimes those terms are used interchangeably- as this link  shows ,but also an IME doctor would have to determine if it was ratable at least at 10% within the first year after your discharge,regardless of what a IME diagnosis would be.

https://www.healthline.com/health/rheumatoid-arthritis/arthralgia#distinctions

 

https://www.healthline.com/health/rheumatoid-arthritis/arthralgia#distinctions

 

 

 

Edited December 6, 2019 by Berta

[Berta]

https://www.va.gov/vetapp03/files/0332922.txt

"ORDER Entitlement to service connection for arthritis is granted."

It is a long read but the veteran also had diagnosis of arthralglia.

This veteran succeeded in higher ratings for his arthralglia, for 3 of his 6 claims:

https://www.va.gov/vetapp96/files4/9636077.txt

The diagnostic codes are all different for each part of the body the arthralglia affected.

The VA schedule of Ratings might have the proper code for your shoulder arthralgia.

 

 

[Berta]

The diagnostic codes Did change:

https://www.va.gov/vetapp07/files1/0700360.txt

If you google arthralgia VA Diagnostic Codes, you will get many BVA decisions on this disability.

 

[ROMAD]

I will check with the VA and see if I can get the results and actual x-rays because I believe you are right and I should have someone review them. I still get pain when I move my shoulder over head and there is some grinding but I have not had the VA do anything I just assumed I had to live with it. As I get older I am beginning to realize there is no reason to  just live with it. It is frustrating because I noted the condition within the 1 year mark but I guess since it is less than 10% disabling they said it was not service connected... that did not make sense to me. seems they would have just said Service connected but at 0 percent. VA logic still confuses me sometimes.