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CUE a HLR denial that failed to address CUE contentions of functional loss/impairment?


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  • HadIt.com Elder

The CUE I submitted last year was denied in January. I submitted a HLR asserting a CUE contention that the VA failed to properly apply functional loss/impairment per 4.40 and 4.45 and award a rating higher than 10%. The HLR denied CUE occurred, again relied solely on the maximum ROM, but made no mention of my contentions that functional loss/impairment per 4.40 and 4.45 were not properly applied.

Initial exam

Quote

The examiner noted that the maximum amount you were able to open your mouth was 35 mm and he noted that your "mandible locks midway and the patient has to push downwards with his fingers to reach maximum." While this statement implies a limited amount of jaw movement at that time, the lack of objective measurements to quantify this limitation does not support a higher evaluation based on the results of the examination"

This exam was a crap shoot, but at least they were able to confirm it was in the record. A reasonable person would have used objective math to divide 35 mm by 2 resulting in 17.5 mm to award a 30% rating. If the examiner did not objectively mean "midway", he would have not stated it. At minimum, it provides more proof of functional loss/impairment.

 

Second exam (a month later)

Quote

A thorough review of the dental exam shows that you were able to open your mouth to 42 mm and that you experienced a loud click at 29 mm. Although the dental exam indicated a pop and pain starting at 29 mm, you were still able to open your jaw to 42 mm. Therefore, the rating decision dated February 1, 2000 was correct in assigning you a 10 percent evaluation.

The bold text is quoted from the C&P section describing the extent of functional impairment due to loss of motion. Consideration of functional loss/impairment at 29 mm which would awarded a 20% rating.

 

The VA sternly used their own internal policy in M29-1 as a means to recently deny a S-DVI life insurance waiver. Because they did that, I should be able to use it in reverse as CUE by showing they failed to follow their own current policy in M21-1: Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative, Clear and Unmistakable Error that requires the VA to do the following for CUE's and HLRs:

1. Explain the persuasiveness of evidence
Nope, didn't happen.

2. Address all pertinent evidence and all of the claimants contentions
Nope, 4.40 and 4.45 ignored. They also ignored a radiologist's findings stating I could not open fully unless doing it with my hands.

3. The reason for denial should be based on a review of the available facts and how they relate to the statutory and regulatory requirements
Nope, 4.40 and 4.45 ignored.

 

The VA still has yet to properly address my evidence-based contentions that 4.40 and 4.45 were not properly applied, which include:

1. Anatomical damage to parts of the system.
2. Inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.
3. Pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.
4. Impaired ability to execute skilled movements smoothly.
5. Pain on movement.
6. Disturbance of locomotion.

 

DeLuca/4.40 and 4.45 cannot be diluted with Mitchell v. Shinseki (2011) because it was not in effect.

I just checked M21-1 and CUE submissions still do not require a specific form.

Would engaging my Congressional representative's office be beneficial?

Any advice or assistance is greatly appreciated.

 

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My advice:  Appeal the denial to the BVA, instead of going in an "endless loop" of VARO denials.  If you expect VARO raters to be able to read and understand VA regulations, you will surely be disappo

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Vync Hell of a journey you're on. I seriously doubt getting a Congressman's help will work. They like these feel-good stories that can help with getting votes. This is way out there in terms of a good P R story for their press. My understanding is if you lose on a CUE, that's the end of the CUE unless the VA does another CUE on the decision. At this point, it is just as much a legal problem as it is a medical one. I think you need some other outside help. How far back is your EED going to be? If it is sizeable, you might be able to get a law firm that wants a big challenge just for kicks. Or maybe Dr. Anaise or Ellis. That's what I would do. But if you keep doing what you've been doing and getting denied, maybe try something else?

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  • HadIt.com Elder

@GBArmyIn this case, a new doctor's opinion cannot be introduced due to the CUE restrictions.

I looked up the M21-1's CUE policies/procedures and found:

  • A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.
  • If the CUE alleged is different from a CUE issue previously rejected, use a rating to determine whether or not a CUE was made on the new issue.

If they followed their own policies/procedures, they would have considered functional loss/impairment which should warrant an increase. At least that's how I read it.

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My advice:  Appeal the denial to the BVA, instead of going in an "endless loop" of VARO denials.  If you expect VARO raters to be able to read and understand VA regulations, you will surely be disappointed.  

In fact, if the VARO's understood the regulations and did their job, why are more than 75 percent of VARO decisions either reversed or remanded at the BVA?  Check the BVA chairmans report, for my source.  

Worse, you have res judicata going against you, another reason you need to appeal to the BVA.  

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  • HadIt.com Elder

I agree that the BVA might be the best way to go- as the BVA can read.

But I also want to mention something regarding CUE- I have received hardly any PMs ,most are 3 years old and received a PM the othe day but asked the veteran to post their question on CUE on the main hadit forum. The question seemed sort of familar- he asked this same question in March I think of 2019 here in the main forum and both Broncivet and I replied to him.

At the time it appeared to me he had a valid CUE basis but the CUE was very involved and I beliebe Broncovet told him to try and simplify it.

I think all CUEs should be as short as possible. But maybe the CUE was as easy as pie for the RO to read.

I had a few easy CUEs but one took almost 8 years , was set for BVA transfer ( which I knew it would succeed a BVA, but Nehmer 2010 happened and the Nehmer Philadelphia VARO awarded the CUE.

The problem with the BVA appeal process is that Time is our enemy.

Broncovet is right-I read BVA decisions almost every week, sometimes daily and it is an outrage that many of those remands involve things that the ROs should have done right in the first place.

My BVA award for AO DMII as direct cause of death of my husband revealed the BVA read EVERYTHING in my file, to include all of the evidence my RO completely ignored many times.

The BVA also agreed with me that my VCAA letter was illegal but considered that a moot point because they awarded anyhow.

Things do not miraculously disappear from the BVA either. Two of my pending claims seem to have completely vanished from Janesville. I called the White House Hot Line on that.I decided if I get crap on my claims ( standard procedure for me since 1995 at the RO level)I will appeal to the BVA again and hope I live long enough to see the proper results.

MANY claims at BVA should not even be there, but they are because we deal with RO individuals who do not care about VA case law and regulations, at all.

 

 

 

 

 

 

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