Ask Your VA Claims Questions | Read Current Posts
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
-
Similar Content
-
- 5 answers
- 603 views
-
CUE in very favorable decision, Mtn for Reconsideration, How much Delay??? 1 2 3
By Otrgypsy,
- cue
- motion for reconsideration
- (and 2 more)
- 13 answers
- 986 views
-
- 57 answers
- 6,819 views
-
- 1 answer
- 629 views
-
- 5 answers
- 1,064 views
-
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.
"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat
Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.
Link to comment
Share on other sites
Top Posters For This Question
2
1
1
1
Popular Days
Sep 2
4
Sep 3
1
Top Posters For This Question
Vync 2 posts
Berta 1 post
broncovet 1 post
GBArmy 1 post
Popular Days
Sep 2 2020
4 posts
Sep 3 2020
1 post
Popular Posts
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
4 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now