EricHughes

I would like to thank the members of this board for reminding me not to draft a claim without first packaging it in a manner consistent with elements of law to be applied. I have made the needed corrections and will discuss them with my attorney. As I will be obtaining -professional- analysis of my position later this week, there is no need to further debate the merits of my claim.

Please review "Standards to the Standards of review" by Lee Will Berry IV, clerk to the CAVC. The Law Review Article can be found at "Veteran's Law Review" via the following link: http://www.bva.va.gov/VLR_VOL3.asp The legal concepts of "Pure Law" and "Pure Fact" are specific terms that apply to standards of review. The spectrum in between the two are subject to debate and interpretation and also subject to a sliding scale of standard of review. This grey area in between deals with the assignment of weight of evidence, and as such are not CUE's. A succinct graph detailing the concepts as they apply to the CAVC can be found on page 268.

Yes, I can show an average of three corticosteorid bursts between March 1999 and March 2010 when my asthma improved due to allergy shots. This is of record and the VA has accepted that record for the higher rating in later decisions. The Rating Criteria are the ones from 2001, as I copied them from the rating decision. A CUE is only permitted when the error is a question of Pure Law, or a question of Pure Fact. The application of laws to facts is a question of judgement and not a CUE. I was an EMT in 2 FSB Camp Hovey Korea in 1997-1998, and at Ft. Bragg in 1998-1999. The asthma I developed from the great flood of August 5, 1998 in South Korea.

Revised N&M Service records claim follows: To Whom It May Concern: In accordance with 38 CFR § 3.156© claimant submits New and Material SERVICE records to reopen the August 24, 2001 rating decision. On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes referring to the prescription of “Prednisone”, a corticosteroid. These clinical notes are June 24, 1999, June 7, 1999, and three dates that are illegible. Then on October 13, 2011 claimant also located within his possession active duty prescription records. They clearly show three separate prescriptions for Prednisone in the twelve month period directly prior the effective date of service connection for Asthma. Drug Prescription # Order # Doctor Date Prednisone M114701254 990707-05953 Arnold, Gerald 07 July 1999 Prednisone M11647567 990612-00420 Duffy, Tim 12 June 1999 Prednisone M11586932 990412-02520 Jaffe, Burton 12 April 1999 The consequence of these new and material SERVICE records is that the original a disability rating of 30% for asthma was wrongly assigned. The correct rating for asthma should have been 60% for the following reasons. In 2001, to this day, a rating of 60% is warranted when an FEV-1 of 40-55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) course of systemic corticosteroids. [underlining added for emphasis] Wherefore, the August 24, 2001 findings of facts state “He reported to the emergency room on three occasions for asthma attacks and received treatment numerous times for exacerbations.” But absent from the discussion of facts is the claimant’s prescription record for Prednisone. Subsequently on August 4, 2004 the RO denied a TDIU claim on the grounds that the claimant failed to meet the required minimum disability-rating threshold of 70%. This failure to meet the minimum threshold requirement for TDIU was the only reason given for the denial of the TDIU claim in 2003. Had the RO correctly rated the claimant’s asthma on August 24, 2001 at the 60% level, the claimant would have indeed met the minimum-rating threshold for his TDIU claim. Then, based on evidence of record and in particular the RO’s failure to state cause for rejection on any grounds other than failure to meet the minimum rating threshold, TDIU should have been granted effective May 22, 2003. Wherefore, for the above-mentioned causes, claimant submits his claim for retroactive revision of the August 21, 2001 and August 4, 2004 rating decisions. He seeks the full sum of back pay due. Sincerely, Eric Lee Hughes

Very Good TIP! Thanks a billion!

The following is the "TEST" for a CUE. All three cases must be met. (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)) J is correct. I should be arguing that the regulation was incorrectly applied to the facts that were known at the time of the decision.l The error is plainly not debatable, the prednisone scripts clearly demand a specific outcome and would have manifestly changed the outcome at the time it was made. The version of CFR Part 4 to be applied is clearly spelled out in the rating decision. I will revise my claim to meet the above test.

Thank you J. I do have such an attorney on retainer. I came here looking for the reactions of someone that does not have a dog in the fight. I was hoping coming here would expose the weaknesses in my position, so that they can be anticipated and addressed in the filing.

The rating table changed in 2000. But they chose to apply the 2000 rating table instead of the 1999 rating table at the time in question. Which is fine, either one still would produce a 60% rating. In another portion of the rating decision on weight gain, they do mention the prednisone script. Thus it was clearly before them at the time of rating. The IU argument is a stretch, but I don't believe it is an unreasonable one since the reasons and basis for the TDIU claim denial change if the original rating decision is revised. You are correct, the protection is flawed. My bad.

What is not allowed by regulation is a review of the weight of evidence. A failure to consider evidence before the rater at the time of rating is quite another thing. The second is a question of pure factual error. Clearly you believe that the law is different. Can you cite the basis for your position? Or are you limited to personal attacks?

Ah, well that isn't what happens when you live in VISN 10. They love to split hairs here in Ohio. In the same rating decision that they granted SC for "Mood Disorder" they denied SC for Bi-Polar Disorder., Likewise they granted SC for PTSD but denied SC for Anxiety Disorder in a different rating. Then they blame all symptoms on the two disorders they didn't service connect. I'd file a CUE for Inextricably Intertwined, but for now I agree with the 10% overall rating. So it is moot.

I agree a remand is better than a denial.

From what I can tell, if I present the issue in a clear manner, (something I failed to do here), the rating for asthma will be fixed early on. But the domino theory of CUE's appears to be a novel question of law that may go as far as the Federal Circuit before it is resolved. Even though i am confident in my position, I still have hired an experienced attorney to review my work and make the argument.

I am currently service connected for Sleep Apnea @ 50%, Asthma @ 30%, Degenerative Disk Disease @ 20%, Throatic Strain @ 20%, Largeopharangial Reflux at 30%? (from memory), Mood Disorder 10%, PTSD 0% Yes, I have a BA is Psychology, a Certificate in Paralegal Studies, and was a Combat Medic on active duty. I sit for the VA claim's agent exam on Friday.

Oh you are generous. I was expecting it to take longer.... :-) I am serious when I say that. What I have seen reviewing the BVA decisions is that when a question of weight is brought up in this context is that VA does everything in its power to keep the issue out of the courts. If you review the case law that I cite, the VLJ or DRO reweighs the evidence according to Daubert. That does not always work out in the veteran's favor. But it does serve to temporarily fix the VA's broken scale. Even if the weight of the evidence does not work out in the veteran's favor, a remand for further development will usually result. I see this as a way to wrestle control of the "tread mill" from the VA and put it back in the hands of the claimant. Mind you it won't stop the treadmill, but it will get it to change directions.

Thank you that was helpful. I see now your confusion. The August 21, 2001 rating decision is the -Original- decision. It took the VA 2 years to render an original decision. Therefore the SMR's are the only medical evidence of record.

Wrong. The US Supreme Court sets the specifications of the scale, not the VA. Yes, I know that the VA likes to think they own the scale. But the case law is very clear. I've found BVA decisions that clearly support my position when the question of weight is raised. But I did not cite them, as they are not binding.

The assignment of weight deals with the situation when the VA C&P examiner and the Independent Medical Opinion are in disagreement. Rather than allowing the VA to remand the claim for a new VA C&P examiner, the case law I cited can be used to compel the VA to weigh the evidence in favor of the IMO. As for Lay Evidence, nothing in this power point applies. The reason is that lay evidence is a "Fact Witness" not an "Expert Witness".

Sorry, I'm not posting my medical records to the internet. But generally, they are the prescription records and ED admission records that clearly show three courses of corticosteroid usage. This was outlined in my original post.

Yes, the medical evidence was established at the time of the CUE. It is in the SMR and the SMR was before the RO at the time of rating. I am working from an electronic copy of the CFille provided to me by the VA. This is an error of pure fact, not an error of pure law.which is what most CUE's are.

I went through a PEB and filed for compensation while on active service.

Same day as the SC for Asthma. September 22, 1999.

I converted the .pptx to an rtf file, and pasted it here. Sorry for the confusion. Questions of Weight Expert opinion evidence in VA Claims Federal Rules of Evidence Frye standard / General Acceptance Test Overturned The Federal Rules of Evidence determine admissibility of scientific evidence in a Federal Trial. Daubert v Merrel Dow 509 U.S. 579 (1993) Rule 702 Exception to the Exemption Federal Rules of Evidence } “Challenges to expert testimony and scientific evidence are analyzed under the Supreme Court’s Daubert factors” Liquid Dynamics Corp v Vaughn Co., 449 F. 3d 1209 (Fed. Cir. 2006) Federal Rules of Evidence } Daubert factors may apply to the testimony of engineers and other experts that are not scientists Kumho Tire Co. v Carmichael 526 U.S. 137 (1999) Federal Rules of Evidence The Federal Rules of Evidence apply to: ◦ United States district courts ◦ District Court of Guam, ◦ District Court of the Virgin Islands ◦ District Court for the Northern Mariana Islands, United States courts of appeals ◦ United States Claims Court, ◦ United States bankruptcy judges ◦ United States magistrate judges Fed. R. Evid. 1101(a) Federal Rules of Evidence } Federal Rules of Evidence are not binding on the CAVC or the Board of Veterans Appeals } BUT the rules on expert testimony are illustrative to both Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) Federal Rules of Evidence } Rule 702 ◦ If scientific, technical, or other specialized knowledge will assist the Trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case ◦ Fed R. Evid. 702 Elements of Opinion Element #1 Qualifications of Experts Element #1 Qualifications of Experts } The Department is explicitly and implicitly authorized to use its own employees as experts Bastien v Shinseki 599 F. 3d 1301 (Fed. Cir. 2009) 38 U.S.C. §§ 5103A(a), 7109(a); 38 C.F.R. § 20.901 Element #1 Qualifications of Experts } Absent a challenge by the claimant, the VA need not present the credentials for each and every examiner Rizzo v Shinseki 580 F. 3d 1288 (Fed. Cir. 2009) Element #1 Qualifications of Experts } A request for information about an examiners qualifications is not the same as a challenge to those qualifications } It is assumed that litigants who are told an expert witnesses qualifications frequently may conclude there is no basis for objection } Bastien v Shinseki 599 F. 3d 1301 (Fed. Cir. 2009) Element #1 Qualifications of Experts } Challenges to a VA examiner’s expertise must: ◦ Set forth reasons why the claimant concludes the expert is not qualified ◦ Reasons must be particular } Absent these, ◦ Trier of Facts can not determine validity of challenge Bastien v Shinseki 599 F 3d 1301 (Fed. Cir. 2009) Element #1 Qualifications of Experts } VA permitted by statute to accept a private physician’s report without further development } VA not prohibited from ordering an examination when private physician’s report is adequate for rating purposes } Gerrieri v Brown 4 Vet. App 467 (1993) Element #1 Qualification of Experts } Statements by non-physicians may not be referred to as “Non-Evidence” } The opinion of a licensed counselor regarding the etiology of a psychological disorder must be considered as evidence and weighted } Hogan v Peake 544 F 3d 1295 (Fed. Cir. 2008) } See 38 C.F.R. § 3.159(a)(1) Element #1 Qualifications of Experts } Board may not act in an arbitrary or capricious manner in rejecting private medical opinion Kowalski v Nicholson 19 Vet. App. 171 (2005) Elements of Opinion Element #2 Sufficient Facts or Data Element #2 Sufficient Facts or Data } Examiner providing the report or opinion must be fully cognizant of the claimant's past medical history. } Green v Derwinski 1 Vet.App. 121 (1991) Element #2 Sufficient facts or data } The medical opinion can be rejected if the history upon which it is based is inaccurate } Swann v Brown 5 Vet.App. 229 (1993) Element #2 Sufficient facts or data } Opinions based on inaccurate factual premises have no probative value } Hadsell v Brown 4 Vet.App. 208 (1993) Element #2 Sufficient facts or data } Review of claims file in not required where it would not change the objective and dispositive findings made during the medical examination Snuffer v Gober 10 Vet.App. 400 (1997) Element #2 Sufficient Facts and Data } A missing C-File at the time of examination is not adequate explanation for assigning the opinion zero weight. Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) Element #2 Sufficient facts or data } VA Examiner need not specify specifically that the entire exam file was reviewed when it is clear from the report ◦ The examiner reviewed the file ◦ Demonstrates familiarity with the veteran’s history D’Aries v Peake 22 Vet.App. 97 (2008) Element #2 Sufficient facts and data } The examiner need not read all documents in the Case File, provided that the documents not read are not probative to the opinion rendered and relevant to the claim sought Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) Element #2 Sufficient Facts and Data } Board my rely on private medical opinion that is based on accurate medical history provided by the veteran ◦ i.e. the veteran must present a creditable history Kowalski v Nicholson 19 Vet.App. 171 (2005) Element #2 Sufficient Facts and Data } Private medical opinion may not be discounted solely because the opining examiner did not review the claims file Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) Element #2 Sufficient Facts or Data } Claimants can not favor medical examinations supportive of their cause, only to discount contemporary examinations that do no support the claimant’s view Kent v Principi 389 F. 3d 1380 (Fed. Cir. 2004) Elements of Opinion Element #3 Product of Reliable Methods Element #3 Product of reliable methods } An opinion based upon an inaccurate factual premise has no probative value Reonal v Brown 5 Vet.App. 458 (1993) Element #3 Product of Reliable methods } Opinion must contain not only clear conclusions with supporting data but also a reasoned medical explanation connecting the two Stefl v Nicholson 21 Vet.App. 120 (2007) Element #3 Product of reliable methods } Medical evidence cannot be based on: ◦ General conclusions ◦ Solely based on veteran’s reported history ◦ Unsupported clinical evidence Black v Brown 5 Vet.App. 177 (1993) Element #3 Reliability of methods } Examiner must reconcile previous reports to present a consistent picture } Green v Derwinski 1 Vet.App. 121 (1991) Elements of Opinion Element #4 Reliable Application Element #4 Reliable Application } Expert Opinion should state the diagnosis of the veterans' current condition Green v Derwinski 1 Vet.App. 121 (1991) Element #4 Reliable Application } Expert must note what research was conducted and what authorities support the stated theory of causation } Expert must consider not only direct service connection but also: ◦ Contrary opinions, ◦ Risk Factors ◦ Studies Stefl v Nicholson 21 Vet.App. 120 (2007) Element #4 Reliable Application } Must support its conclusion with an analysis that the board can consider and weigh against contrary opinions Stefl v. Nicholson 21 Vet.App. 120 (2007) Element #4 Reliable application } The Board is obligated to discuss every theory raised by the record. } To do this the examiner must provide expert opinion on every theory espoused Robinson v Mansfield 21 Vet.App. 545 (2008) Element #4 Reliable Application } The Board must return an exam as inadequate ◦ If the findings on examination do not support the diagnosis ◦ If the findings on examination do not provide sufficient detail 38 C.F.R. § 4.2 (2011) Element #4 Reliable Application } “The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.” Massy v Brown 7 Vet.App. 204 (1994) Citing Pretoria v. Derwinski, 2 Vet.App. 625, 628 (1992). Ipse Dixit Prohibited opinions Ipse Dixit (Because I said so) } Ipse Dixit: ◦ Something Asserted but not proved Black’s Law Dictionary 905 (Bryan A. Garner ed., 9th ed., West 2009) Ipse Dixit (Because I said so) } A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion Stefl v Nicholson 21 Vet.App. 120 (2007) Ipse Dixit (Because I said so) } “A bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness.” Miller v West 11 Vet. App. 345 (1998) Ipse Dixit (Because I said so) } Ipse Dixit: ◦ “The veteran’s bipolar disorder is service connected” } Right Way: ◦ In service the veteran was exposed to a flood, and shortly thereafter contracted asthma. He was medically retired for the same. Outside the presumptive period, his asthma condition was treated with high dose corticosteroids. On multiple occasions this coincided with symptoms of mania – a know complication of corticosteroid usage. Therefore, the veteran’s bipolar condition is more likely than not related to his treatment for asthma and is therefore service connected. Ipse Dixit (Because I said so) } Ipse Dixit: ◦ This veteran needs a fiduciary } Right Way: ◦ On May 23, 2010 the veteran discussed in an EOTH group that he goes to the casino every weekend. A few weeks later he was observed by the clinic receptionist begging for bus fair to go home from group. Then, on July 16, 2010 the veteran complained that he was overwhelmed with credit card debt, and was pan handling for spending cash. In light of the circumstances, it is likely that this veteran has a co-morbid gambling addiction. Until controlled, this veteran needs a fiduciary. Ipse Dixit (Because I said so) } “The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” Dennis v Nicholson 21 Vet.App. 18 (2007) Ipse Dixit (Because I said so) } Examination should state why the expert believes the condition existed during service Wells v Principi 326 F 3d 1381 (Fed. Cir. 2003) Ipse Dixit (Because I said so) } The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) Ipse Dixit (Because I said so) } [T]he Board's conclusions … ◦ "must be justified by a clear statement of reasons or bases and not by the equivalent of 'because I say so.’” Hood v. Brown 4 Vet. App. 301 (1993) Weight of Evidence Weight of Evidence } The Board may give weight to one opinion over another Owens v Brown 7 Vet.App. 429 (1995) Weight of Evidence } Assignment of Weight is foundation of medical opinion Kowalski v Nicholson 19 Vet.App. 171 (2005) Weight of Evidence } Rational is of primary importance for the lay evaluator to base the assignment of weight upon. Obert v Brown 5 Vet.App. 30 (1993) Weight of Evidence } Probative value of medical opinion based on: ◦ Medical Experts personal examination of patient ◦ The persons knowledge and skill in examining the patient [Credentials] ◦ The medical conclusion the examiner reaches Guerrieri v Brown 4 Vet.App. 467 (1993) Weight of Evidence } Board must provide an explanation for discounting favorable evidence Gabrielson v. Brown 7 Vet.App. 36 (1994) Weight of Evidence } Benefit of Doubt Doctrine does not bar the Board of Veterans Appeals from excluding expert testimony for lack of weight } The Weighting of evidence is not within the appellate jurisdiction of the Federal Circuit Court of Appeals ◦ Ultimately the weight of evidence falls to the Board and through it the adjudicator Fagan v Shinseki 573 F. 3d 1282 (Fed. Cir. 2009) Weight of Evidence } The presumption of sound condition is given exceptional weight ◦ Exceptions Infirmity specifically noted upon entry into service Clear and mistakable evidence demonstrates that the disease or illness existed before acceptance and enrollment and was not aggravated by such service } 38. U.S.C. § 1111 Weight of Evidence } Death Certificate and medical Records are more persuasive than the speculative opinion of a private examiner* Tirpak v Derwinski 2 Vet.App. 609 (1992)* *Pre-Daubert opinion Author information } Eric Lee Hughes is a 2011 paralegal graduate from Brown Mackie College-Cincinnati, Ohio } At the time of writing he was not an accredited agent or service officer

humm I can't seam to upload a pptx or pdf file.

This is a power point presentation summarizing my research into the use of expert witnesses in VA claims.