Imo For Cue?

[Angela]

I am working on a CUE for failure to consider all medical records - RO used only in service Medical Evaluation Board document for rating, quoted it directly - and failed to consider more recent medical records by a specialist at all. I am wondering if I should get an IMO before I file?

My disabiltity is listed as 7332 with 60% rating (i.e. extensive leakage & frequent involuntary bm) but should have been rated as 100% (complete loss of sphincter control) since records clearly state "completely incontinent". If anyone knows where I can find a definition of "complete loss of sphincter control" that might be of help too.

Apparently common sence is not a requirement for ROs.

Also, DVA helped me when I originally filed. Does that mean I have to go through them now? What are the rules or where can I find them?

All suggestions welcome.

Angela

[Guest Berta]

Angela,

Here's one place to try to find answers to medical problems and definitions here.

Cut & paste it into your address bar and hit go.

Maybe it will help someone.

http://cancerweb.ncl.ac.uk/cgi-bin/omd?action=Home&query=

Best to all.

carlie

Regarding IMOs and CUES: I agree with what Jim said- this recent case explains it-

http://www.va.gov/vetapp05/files2/0506373.txt

"Clear and unmistakable error is a very specific and rare kind

of error. It is the kind of error, of fact or of law, that

when called to the attention of later reviewers compels the

conclusion, to which reasonable minds could not differ, that

the result would have been manifestly different but for the

error. Generally, either the correct facts, as they were

known at the time, were not before the Board, or the

statutory and regulatory provisions extant at the time were

incorrectly applied. 38 C.F.R. § 20.1403(a) (2004).

To warrant revision of a Board decision on the grounds of

CUE, there must have been an error in the Board's

adjudication of the appeal which, had it not been made, would

have manifestly changed the outcome when it was made. If it

is not absolutely clear that a different result would have

ensued, the error complained of cannot be clear and

unmistakable. 38 C.F.R. § 20.1403©. Clear and

unmistakable error does not include a change in medical

diagnosis that "corrects" an earlier diagnosis considered

in a Board decision, VA's failure to fulfill the duty to

assist, or a disagreement as to how the facts were weighed or

evaluated. See 38 C.F.R. § 20.1403(d); see also Cook v.

Principi, 318 F.3d 1334 (Fed. Cir. 2003).

Review for clear and unmistakable error in a prior Board

decision must be based on the record and the law that existed

when that decision was made. 38 C.F.R. § 20.1403((1). "

Record and law- I do understand what you are saying-

I have an unusual CUE- which hopefully will be decided soon as I am in DRO review process-

The veteran received a posthumous rating decision assigning 100% to some NSC conditions that are due to AO DMII per my IMOs-thus now SC conditions-

however his significant heart disease ,evident in medical records from 1988 to date of death,1994 was never rated by the VARO as he had been misdiagnosed and this was not proven until 1997 that he in fact had heart disease and that it was due to the DMII (also misdiagnosed) which caused his death.

Record and law indicates a proper rating should be done for each condition SC and NSC-

the VA ,by time of this decision, already knew that I had won wrongful death claim which included the misdiagnosed heart disease in the VACO medical opinion.

The med recs and autopsy were in VA's possession at time of the rating that never rated heart disease.

Record and law- at time of alledged CUE-show a legal error and failure that would have manifestly altered the outcome-

My point here is-

regardless of medical error or misdiagnosis- whatever-

the CUE has got to be shaped into the record and laws and regs at the time.The veteran's disabilities were not properly rated-but I have raised this as a legal issue, not a medical one-for CUE criteria-dont know how that will be resolved-

My other CUE at VARO is easier to understand-I expect it to succeed without any rigamorale-

VARO denied the veteran posthumous SMC award as well as SMC in his lifetime.

The veteran's SC disabilities were 100%

My present AO claim's proper resolve will show two additional SC disabilities at 100 % each.That part is not the CUE-

The veteran's two additional 100 % disabilities (additional to 100% SC PTSD)

qualified him for SMC under Sec 1151 (the direct SMC is in an additional claim I have dependent on the DMII award.) in his lifetime during the 6 years prior to his death.

In order to support my statement of CUE I referred the VARO to a General COunsel Pro Op which clearly states that 1151 disabilities can qualify for SMC.(I enclosed the Pres Op)

I also enclosed a statement that VA had given CHAMPVA-stating these disabilities were over 100% P & T under Sec 1151- a statement VA never had made to me in any decision.

This is an easy one for the VARO-

final decision,

error in application of the regs at the time (the Pres Op which restated VA regs in place at time of my CUE- that SMC should be decided on Sec 1151 disabilities),and manifestly different outcome-

2 years due in retro to me as SMC at "M" award

(I have medical evidence to support that but have kept this issue as a legal one at this point)

There are 4 years of "S" award and two years at the "M" award due me under Nehmer when my AO claim succeeds- as direct SC SMC-that is all separate from this CUE)

I hope maybe this or the above VA decision will help you-

That decision is a denied CUE- and denied CUE claims give as much info as the ones which are granted-

do you have any citations for any of those CUE claims that were remanded for an IMO?

I cant remember seeing any like that.

Edited October 31, 2005 by Berta

[Guest Berta]

One more BVA case that might help anyone with a CUE claim:

This recent case involved improper assignment of a diagnostic code- a legal error-

and the veteran succeeded in getting the CUE granted back to 1947.

http://www.va.gov/vetapp05/files2/0507854.txt

"the question before the Board is whether the

omission to consider demonstrable vertebral deformity under

Diagnostic Code 5285 constituted CUE. In the Board's view,

it does for two reasons. First, the Board notes that at the

time of the August 1947 rating action, there was x-ray

evidence of a demonstrable deformity of the L5 vertebral

body. Specifically, the September 1946 x-rays show posterior

wedging of the L5 vertebral body, albeit only "slight."

However, it was definitely a demonstrable deformity even

though the term "vertebral deformity" was not used. In

addition, there was absolutely no countervailing medical

evidence to the contrary suggesting otherwise.

Second, the failure to consider this evidence was error and

the sort of error which, had it not been made, would have

manifestly changed the outcome at the time it was made. The

Board notes that in the August 1947 rating action, the RO

stated that in regard to the veteran's service-connected

fracture of the transverse process of the 5th lumbar spine,

there were no ratable residuals and, as such, a zero percent

rating was warranted. However, as noted above, at the time

of the August 1947 rating, there was x-ray evidence of a

demonstrable deformity of the L5 vertebral body.

In light of the above, it is indisputable that the RO did not

correctly apply the regulation in evaluating the degree of

impairment attributable to the veteran's service-connected

low back disability at that time. The regulation clearly

required "adding 10 percent for demonstrable deformity of

vertebral body." See VA Schedule for Rating Disabilities,

1945 Edition (GPO 1945). There is nothing discretionary

about that language, nor is there any indication that the

vertebral body deformity is to be considered part of the

overall rating assigned to the disability. Rather, the

regulation requires that the 10 percent be added to the

evaluation assigned for a back disorder when there has been a

vertebral fracture and there is demonstrable deformity.

Therefore, under the circumstances of this case, and in light

of the above, the Board finds that the record, as it was

constituted at the time of the August 1947 rating decision,

leads indisputably to the conclusion that the RO committed

CUE in failing to assign an additional 10 percent evaluation

under Diagnostic Code 5285 due to the presence of

demonstrable deformity of the L5 vertebral body.

It was only for 10%, and somehow the vet got hold of the rating schedules from 1947-

yet 58 years of retro under 10% can't be that bad of a success!

The assignment of inaccurate diagnostic codes , based on evidence of record at time of assignment, if- the proper code would result in higher rating, is a very valid basis for a CUE claim.

[Angela]

I'm not sure if I understand the CUE process as well as I should. Let me know if I'm wrong. I have not yet appealed the 60% rating at all. I see CUE as my only option as it has now been over 2 years since the original rating decision. First, I write the CUE motion, send it to VARO, if VARO denies I then appeal to the BVA. BVA can agree with me and grant the 100% retroactive OR deny the appeal OR remand to VARO for rerating OR either get an IMO themselves or send it back to VARO & direct them to get an IMO. Have I got it right?

Here's the legal basis for my appeal. Constructive critisism welcome!

1. VARO committed Clear and Unmistakable Error (CUE) in failing to consider all (specifically most current) pertinent available evidence in rating my disability listed as Rectal Fistulas, Status Post Sphincteroplasty with Residual Incontinence in January 2003. VARO failed to consider 9 Jan 2002 medical evaluation by colo-rectal surgeon. This failure is CUE on its face and a violation of:

a. 38 CFR 3.102 - requires rating specialist to view in relation to whole recorded history

b. 38 CFR 4.1 - requires that each disability be viewed in relation to its history

c. 38 CFR 4.3 - requires careful consideration of all procurable and assembled data

d. M21-1, Part VI 2.10a - clear and unmistakable error exists if VA overlooked material facts of record

e. M21-1, Part VI 3.13b - rater must evaluate all evidence that is relevant and necessary to the determination

2. VARO committed CUE in failing to acknowledge evidence pertinent to my Residual Incontinence in “Reasons for Decision” in January 2003 rating decision. VARO failed to acknowledge results of 9 Jan 2002 examination by colo-rectal surgeon. This is a violation of:

a. M21-1, Part VI 3.13b - Concisely cite and evaluate all evidence that is relevant and necessary to the determination

b. M21-1, Part VI 3.13c1 - The next entry in the paragraph should be the findings from the current exam

3. VARO committed CUE in quoting at length from Dec 01 MEB narrative. This is a violation of:

a. M21-1, Part VI 3.13b - Do not quote at length from letters, affidavits, hospital reports, etc

[Angela]

http://www.va.gov/vetapp05/files1/0502901.txt

This is just one example of CUE remanded for IMO.

You can find more searching BVA decisions with terms CUE remand IMO

[Guest Berta]

http://www.va.gov/vetapp05/files1/0502901.txt

This is just one example of CUE remanded for IMO.

You can find more searching BVA decisions with terms CUE remand IMO

No- that case is not an example of remand under CUE.

"The March

2000 rating decision has not become final and binding;

indeed, it is currently under appellate review and is the

subject of this remand. See 38 U.S.C.A. § 7105 (West 2002);

38 C.F.R. § 20.1103 (2003). Accordingly, the appellant's CUE

contention in the March 2000 rating decision lacks standing

under the law and the December 2000 rating decision which

purports to decide the CUE claim is similarly without force

and effect."

The claim was still in the appeal process -this is a widow's claim and the remand was for an independent medical opinion regarding the veteran's death.

Since the claim was not final-still being appealled- this is why the VA said

" the appellant's CUE

contention in the March 2000 rating decision lacks standing under the law"....

I have never seen a CUE resolved by an IMO.

It is a legal argument , not a medical one.

Edited November 2, 2005 by Berta

[Angela]

Thanks Berta!

It's so great to get info from someone who really knows how these things work. Not to mention the $$ you just saved me!

I believe I have my legal argument written well enough that I've proven error, but if I understand the process (which I'm NOT saying I do) to get them to rule in my favor don't I have to ALSO prove that if they hadn't made the error the result would have been different??

The problem is the way the rating code is written for 7332. Everything other than 100 percent speaks to levels of incontinence, but 100 percent says "complete loss of sphincter control". This wording isn't used by doctors unless they are specifically asked and the VA seems to hate to award 100 percent without it. That's why I was considering IMO.