hypertension Cue Re. Illegal Revocation Of Service Connection

[vaf]

I would like to hear your opinions on what I believe is a CUE committed at the VARO on a denial, which was upheld by a DRO review.

I helped a vet put in a claim for hypertension where the RO and the Board stated in past decisions that the vet suffered from that condition prior to discharge, but they rated it as part of another claim, not separately. The vet is currently involved in a Board appeal for a higher rating for the root condition that the Board remanded back to the VARO for further development.

We then asked the VARO if the hypertension should have been rated separately. In response, the VARO summarily denied the hypertension as service-connected, whether separately or as part of another condition. We didn't expect this response, because we sent in hard copies of the VARO's and Board's own prior decisions that acknowledged the condition existed prior to the vet's discharge. It sounded like they reviewed a different set of records than what were before the VARO and the Board in the past, it was that disconnected from the facts that were acknowledged in the rating decisions for the root condition that caused the hypertension in the first place.

We asked for a DRO review, stating that the denial constituted a clear and unmistakable error (CUE), based on the fact that the VARO discontinued service connection for hypertension, which the VARO and Board had previously acknowledged existed as part of a service connected root condition for the last 17 years. The statute in 38 CFR states that the VA cannot revoke service connection for a condition that has existed for ten years or more, unless the rating decision was awarded due to a fraudulent claim.

If the VA stated hypertension was secondary to another disability, but didn't rate hypertension separately, is it still considered service connected, even though it hasn't been given a separate rating?

We're arguing that, in this case, the statute that applies to the ten-year rule also applies to the vet's hypertension, and we still think it should have been rated separately. The vet didn't receive any due process, so we are arguing that the VARO committed a CUE. We again sent the VARO copies of its own previous acknowledgements, as well as the Board's, that hypertension existed prior to discharge, and was an outcome of the other rated condition.

We thought this was such an obvious error that the DRO would recognize this. We were wrong.

The DRO sent a cut and paste response of the prior denial, upholding that denial, which flew in the face of the VARO's and Board's past written acknowledgements. The DRO decision did not address the CUE, any of our arguments, or any of the evidence. It merely stated the usual stuff about no evidence existing in the service medical records, etc., which contradicted their previous statements.

The VARO sent the veteran a Form 9 to file a Board appeal. We copied the Board on the CUE appeal, because CUE's must be resolved at the agency level where the CUE occurred, which was at the VARO. We've asked the Board to send the CUE back to the VARO to correct. We are waiting to see what happens next.

Edited August 8, 2010 by vaf

[pacmanx1]

Is this claim still in appeal status? You stated that the DRO made a decision on March 16, 2010

[vaf]

Yes, it is. The VARO sent the Form 9 to file a Board Appeal. We sent the NOD attached to the completed Form 9, not only back to the VARO but also to the Board, stating that we believed the VARO committed a CUE, and asking that the Board, if it agreed, send the claim back to the VARO to resolve. If not, then we asked for a docket number for the Board appeal.

[pacmanx1]

Since the claim is still in appeal status, it can not be a cue. When did the veteran file a claim for service connected hypertension?

[vaf]

Since the claim is still in appeal status, it can not be a cue. When did the veteran file a claim for service connected hypertension?

He sent the initial inquiry asking if it should be service connected on a separate basis on August 4, 2005.

So, if a veteran asks the VARO to CUE itself on an error of this nature, this can't be done until after the veteran exhausts his appeals at the Board level, is that what you're saying?

Also, back to my original question -- Does or does not the hypertension merit the same protection of service connection over ten years as does the primary condition to which the VA has already acknowledged its causal relationship, even though the hypertension was not rated separately?

Edited August 8, 2010 by vaf

[carlie]

You file the CUE claim with the level that made the CUE.

If you have a final, unappealed decision that was made by the VARO

then you file the CUE claim with the VARO.

If you have a final, unappealed decision that was made by the BVA

then you file the CUE claim with the BVA.

[vaf]

You file the CUE claim with the level that made the CUE.

If you have a final, unappealed decision that was made by the VARO

then you file the CUE claim with the VARO.

If you have a final, unappealed decision that was made by the BVA

then you file the CUE claim with the BVA.

Yes, that's what happened here, although the VARO decided to force the Board appeal instead of handling the CUE here -- that's why it issued the Form 9 and told us to file a Board appeal if we disagreed.

OK, so we filled out the Form 9, but attached the letter to it asking the Board to return the appeal to the VARO because of what we believed was a CUE. In the event, however, the Board disagreed, we wanted to file the Board appeal. That's the way we phrased everything, because we believe the VARO wouldn't voluntarily do anything more with it than it's already done.

Carlie, do you think this is a CUE? Pete?

Edited August 8, 2010 by vaf