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.
Question
Vync
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
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)
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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broncovet
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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