Appealing a CUE under the new system

[Vync 2,285]

Did the VA make the same CUE twice? Please offer your opinion.

In my CUE, I asserted the VA failed to apply:

• 38 CFR 4.40 Functional Loss
• 4.45 The Joints
• Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion)

 

Here is the rating decision denying CUE:

Quote

You submitted a claim stating that rating decision dated February 1, 2000 was erroneous in granting a 10 percent evaluation as evidence showed painful motion starting at 29mm. Review of the dental exam dated December 17, 1997 shows that you were able to open your mouth to 42mm and you experienced a loud click at 29mm. Lateral excursive movements were noted as 6mm to the left and 7mm to the right. Review of rating schedule at that time shows that a 10 percent evaluation was given for inter-incisal range of 31-40 mm or range of lateral excursion of 0-4 mm. Although dental exam indicated a pop and pain starting at 29mm you were still able to open to 44mm. Therefore, rating decision was correct and does not contain clear and unmistakable error.
(38 CFR 4.150).

The VA acknowledges that a loud click was heard and painful motion started at 29 mm (falls in the criteria for a 20% rating)

Again, the VA failed to apply:

• 38 CFR 4.40 Functional Loss
• 4.45 The Joints
• Key provisions of the DeLuca ruling (painful motion = functional loss = limited motion)

Do you agree that the VA again failed to apply these laws?

Should I have been granted a 20% rating?

 

I wanted to ask about something else I am considering adding. In Nov 1997, I had a C&P exam which was lost, but I later found it in my claims file. It is never mentioned - ever. What's great is in the second C&P exam, the doctor stated material from the first exam was "misplaced".

Quote

Max. mouth opening ==> 35 mm (mandible locks midway and pt. has to push downwards with his fingers to reach max.)

Key factors:

1. C&P examiner stated (in exam #2) that this material from exam #1 was misplaced (that's a CUE just by itself)
2. Dictionary definition of "midway" is "halfway"
3. Simple math: 35 mm divided by .5 (half) is 17.5 mm.
4. The DeLuca factors would confirm limited motion began at 17.5 mm.

Would a reasonable person to come to the conclusion that limited motion began at 17.5 mm?

Or would this be considered weighing of the evidence? I tend to disagree because this evidence was never weighed by the VA. Also, my interpretation uses objective facts (35 mm, midway meaning halfway, and common math). There is no attempt to weigh evidence.

 

Thoughts?

 

 

[broncovet 4,245]

Based exclusively on what you posted, I agree.  There may be other stuff that is relevant but you did not post it.  

[Vync 2,285]

@broncovet Yes sir! You have a good eye for detail! 

As part of the C&P exams, a radiologist noted that I could not open fully unless I used my hands to do it. That is part of the original C&P exam. I figured that since the VA literally conceded painful motion started at 29 mm, that would - by itself - be adequate enough for a 20% rating if I could them to follow DeLuca correctly.

I thought of the possibility of using the original C&P exam this time around, but I was unsure if the logic I posted would work under the strict CUE requirement. It could potentially result in a 30% rating.

Additionally, I ran the ratings calculator against it to do a "what it" analysis:

If approved for 20%: 
30+20 = 44
44+10 = 50
50+10 = 55

If approved for 30%:
30+30 = 51
51+10 = 56
56+10 = 60

Both result in a 60% combined rating. Either way, the EED for my current % would get 20 year protection.