Successful CUE Claim!

[Vync]

My thanks go out to everyone here on hadit.com! In September 2019, I filed two CUE claims. One was granted and the other was denied, but will be appealed. 

In 1995, I filed a claim for rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522) and it was granted on appeal in 2000 due to aggravation of pre-existing disability. 30% was awarded, but it was reduced by 10% to 20% due to the C&P examiner's opinion: “OPINION: In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service…” After fighting for five years, I was elated and took the VSO's advice not to rock the boat.

In 2009, I found hadit.com and began educating myself. I always felt something was not quite right and began researching this issue. I was still worried about rocking the boat, but in 2019 I finally got the courage to move forward after having a heart attack and realizing life is short. I performed extensive research and filed the CUE claim in September 2019. Because of the ridiculously strict CUE rules, I was required to use laws in effect at the time the rating decision was made, which were found in old copies of the Federal Register. Another challenge was boiling it down to just the facts, removing emotional factors, and presenting the error from the perspective of a reasonable person (i.e. 8th grade reading level, if that).

The VA failed to properly apply this pivotal law from 1961:

Quote

§ 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.

(b)Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.

Two key factors apply:
1. VA must determine the level of disability existing at the time of entrance into active service
2. If the VA cannot determine the level of disability existing at the time of entrance into active service in terms of the rating schedule, they are not allowed to reduce the rating.

 

I then looked up the rating criteria in effect in 2000:

Quote

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

 

My entrance exam was "normal". The C&P found polyps to justify the 30% rating. Can "normal" be ascertained in terms of the rating schedule? No.

 

Other than including a copy of the evidence, relevant laws in effect at the time, and showing how the VA failed to follow the laws when making the decision, this summarizes the entire situation:

Quote

 

Clear and unmistakable error occurred when the statutory or regulatory provisions extant at the time were incorrectly applied to the March 6, 2000 rating decision.

38 CFR § 3.322(a) clearly and unmistakably prohibits reduction of the rating when the degree of disability at time of entrance into service is not ascertainable in terms of the schedule.

The evidence of record clearly and unmistakably shows the degree of disability at time of entrance into service is not ascertainable in terms of the schedule.

Had the clear and unmistakable error not occurred, the preservice level of disability should have been found to be 0% and no reduction made. The result would have been manifestly different by awarding a higher compensable rating of 30% instead of 20%.

 

 

After the VA received my CUE packet, it took them 127 days to complete the request. Six weeks were wasted by the VA requesting copies of relevant medical records from the VAMC, despite those records already being present in my claims file. Considering the fact that my claims file was partially scrambled and even contained other veterans documents, I kind of don't blame them for re-requesting the records so they have them contiguously. One week was wasted by someone at the VARO asking if a CUE needed to be submitted on a specific form (as of today, not required per M21-1).

 

As for my other CUE, it was for TMJ and failing properly apply DeLuca and ROM laws. The rating decision contained even less detail than the original decision. In effect, they made the exact same error again, so I will be appealing.

[GBArmy]

Super, Vync! Now that has to make your day! Congrats.

[broncovet]

Congratulations!

[paulstrgn]

Congratulations on the win Vync!!!

[Guest]

Niiiiiiiiiiiiiiiiiiiice

Congrats man! 

[Foxhound6]

@Vync Superb logic with that, Sir! These are the parts of the claim process that tend to give me the most satisfaction; being able to adjudicate your claim better than the VARO HA!