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Opinions Sought on CUE Argument

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Vinsky54

Question

My NOD is still pending in Waco. It was filed in April of last year. As it has not been reviewed yet, I can still supplement the record. After reading several of the topics here, I see that there are many willing to help. So, here is the CUE portion of my NOD. Anyone that would be willing to read, comment and make suggestions woould be greatly appreciated.

4.    CLEAR AND UNMISTAKEABLE ERROR (CUE)

4.1    STANDARD FOR CUE

4.1.1    Claimant is aware that the standard for proving CUE is stringent and difficult; that if reasonable persons could reach different conclusions in the review of a claim, that no CUE exists. That is not the case here.

4.1.2    The Court of Veterans’s Appeals has held:

When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly §4061), which states that: (a) In any action brought under this chapter, the Court of Veterans
Appeals, to the extent necessary to its decision and when presented,
shall–. . . (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is `clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” [citations omitted] Look v. Derwinski, 2 Vet.App 157, 161-62 (1992)

5.    GROSSLY ERRONEOUS OR NEGLIGENT READING OF  THE SURGICAL RECORD (Claim File, Operation Report, 20 Jun 77)

5.1    In the 2003 claim, Claimant cited surgical Pyloroplasty and Vagatomy as the proximate cause of his Dumping Syndrome. (Claim date unknown, see footnote 1)

5.2    In or about April, 2003, the VA denied the claim, stating, inter alia, there is “no medical evidence (linking) the disability to laparotomy and vagatomy.” 

5.3    There is no mention or reference to a “laparotomy” in any document submitted by the claimant.

5.4    Given that the Claimant was citing pyloroplasty, even a cursory examination of the surgical record should have included looking for that procedure. A proper reading of the record makes the fact that a pyloroplasty was performed painfully evident; it is even designated as “principal.” 
5.4.1    The Clinical Record Cover Sheet, at section 39 – DIAGNOSES-OPERATIONS AND SPECIALS PROCEDURES states;
“Duodenal ulcer disease with hemorrhage.
18 Jun 77 Pyloroplasty. Principal. Clean.
18 Jun 77 Vagatormy. Associated.” (emphasis added)
There is no mention of a laparotomy.
5.4.2    The handwritten cover sheet, contained in the record, also in section 39 states: “2. Pyloroplasty and vagatomy” Again, no mention of a laparotomy.
5.4.3    The handwritten Clinical Record, Narrative Summary, dated 25 Jun 77, states under HOSPITAL COURSE AND THERAPY WAS: …”Vag & pyloroplasty performed…” Laparotomy does not appear on this page.
5.4.4    The Clinical Record, Operation Report, under OPERATION PERFORMED states: “Exploratory laparotomy, ligation of bleeding ulcer, truncal vagotomy, Heinecke-Mikulicz pyloroplasty.” This is the first and only time laparotomy appears in this record; and it appears in the same section as the description of the type of pyloroplasty used.
5.4.5    The de minimus importance of the laparotomy is demonstrated in next section of the Operation Report, under PROCEDURE. It says: “The incision was made…”; the only reference to that procedure.
5.4.6    In contrast, the record states:
•    “The pyloris was opened between sutures…”
•    “The opened pyloris was packed…”
•    “…so then the opening in the proximal duodenum and distal stomach was closed in a Heinecke-Mikulicz fashion…” (The above-referenced pylorplasty procedure.)
•    “This opening allowed two fingers easily.”

5.5    Though not precedential, the following is instructive in this instance, and contains relevant precedent where the medical record was likely misread:

It is equally possible that the examiner simply misread the relevant service medical records, in which case he did not properly familiarize himself with or base his opinion on an accurate understanding of Mr. McGowan’s medical history.

Given this uncertainty, the Board was required to return the examination report to the examiner for clarification. See 38 C.F.R. § 4.2; see also Roberson v. Shinseki, 22 VET.App 358, 366 (2009) (“To be adequate, a medical opinion must be based on a consideration of the veteran’s prior history and examinations and describe the veteran’s condition in sufficient detail so the the Board’s evaluation of the claim may be fully informed.”); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical “opinion based upon an inaccurate factual premise has no probative value”). (emphasis added)
McGowan v. Shinseki, 2011 WL 5903831 (Vet.App.)

5.6    In McGowan the confusion was in trying to determine the difference between a sprain and a strain. One can understand how that can be confused, but in this claim, the difference is between a laparotomy and a pyloroplasty. It is really no different than a veteran who suffers disability from heart-bypass surgery to be told there is no evidence linking the median sternotomy to his disability; or the veteran who has a brain tumorectomy being told there is no link between the craniotomy and his seizures. The error in this claim is so obvious and irrefutable, it must be corrected.
 

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It looks good to me.  Gee, I should have you do mine!  You are thorough, organized, and cite medical reports not rant about how someone treated you badly. 

 

 

Edited by broncovet
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Go over 38 CFR 4.6 as well .

I have been successful with that specific citation. 

Have you posted anything elsewhere at hadit?    Did you scan and attach the denial here before?

I am trying to determine how the potential CUE manifested an altered outcome (meaning $$$) that cause a denial or the wrong rating in the decision.

Is that decision lacking in the proper diagnostic codes?

Are you trying to get the  laparotomy  (and/or any scar from the operation) service connected as secondary?

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Thank you Berta. To answer your questions: 

No. This is my first post. And no, I have not posted the denial. I will have to scan it to post, but I quote it in the NOD. I am posting a redacted version of my NOD here for you to see.

Thank you so much for taking the time to look at this. I am way beyond frustrated.

David/Vinsky

r_NOD.pdf

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Berta:  You had asked about the decision letters. Here is a redacted scan of both of them; the original from 2003 where they are not even looking at the correct surgical procedure (laparotomy vs. pyloroplasty) and the denial from last year that says no new or material evidence was provided. I have never seen such gross incompetence in my life. 

Thanks again for taking the time to look at this.

David/Vinsky

VA Decisions scan - redacted.pdf

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I see problems with the claim in this way...........

The original claim stated they had your STRs but found no inservice records for "dumping syndrome".

Is that a fact...as dumping syndrome might have a medical term in the STRs that is different than dumping syndrome (although there are many BVA on this syndrome)

 

The re-open in April 2015 was denied , with VA saying no New and Material Evidence has been presented ,that was sufficient enough to re-open. 

Since having the inservice procedure , did you have private treatment records or VA medical records generated for treatment?

The VCAA Act provided every veteran with what had to be a significant statement of what they needed. Did you get a VCAA letter and respond in time to that?

I see the main problem here is this.....you did not claim specifically that a Vagatormy or laparotomy resulted, which might have been  a secondary and ratable condition. I didn't see evidence of a continuous disability since having the inservice surgery.

I will re read it all again and others will opine too as I might be missing something.

 "Here is a redacted scan of both of them; the original from 2003 where they are not even looking at the correct surgical procedure (laparotomy vs. pyloroplasty) and the denial from last year that says no new or material evidence was provided."

 

"It is equally possible that the examiner simply misread the relevant service medical records, in which case he did not properly familiarize himself with or base his opinion on an accurate understanding of Mr. McGowan’s medical history"

Possible.

Can you scan and attach here that C & P exam? What were the qualifications of the examiner?

I don't see this as a CUE claim.

I suggest that you ask, along with the NOD, for a Reconsideration but you will need New Evidence and that will have to come from an IMO doctor, in my opinion, and you don't have much time left to do that.

I sure need to comment on this statement you made ,tentatively in the NOD:

   " In McGowan the confusion was in trying to determine the difference between a sprain and a strain. One can understand how that can be confused, but in this claim, the difference is between a laparotomy and a pyloroplasty. It is really no different than a veteran who suffers disability from heart-bypass surgery to be told there is no evidence linking the median sternotomy to his disability; or the veteran who has a brain tumorectomy being told there is no link between the craniotomy and his seizures. The error in this claim is so obvious and irrefutable, it must be corrected."

You are putting way too much faith in the VA. They can see an obvious secondary condition, (such as stroke that the vet claims is due to his/her SC diabetes, and obvious potential outcome of long diabetes, which is standard knowledge in the usual medical community )and  yet they will deny that claim ,without a strong medical opinion for the claim.

 

Just about everyone here, to include me, has gotten bogus and even irrational C & P exam reports, that deny claims.

The last one I got was  ludicrous, and I overcame it quickly with solid medical evidence they had received from me , but 'forgot' to use.

I suggest you go to www.bva.gov and use their search feature for their decisions as there are many dumping syndrome claims there but more importantly, you need to seek an IMO doc to overcome that C & P exam that denied you.

 

 

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The IMO criteria is here under a search for Getting an IMO.

It might well involve an IME instead ( in person medical exam) because you obviously have a surgical scar that might be ratable, if they SC the current condition you have that resulted from all this.

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