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 Jim S.]

Jim S.

Right. I should have written my post better. The reason I was asking about an IMO is that I see so many remands back to rater (once the CUE has been acknowledged) and requests for IMO.

Are you saying that even if I get one, they won't look at it during the re-rating process?

I re-read this post and felt my reply did not answer it quite adequately.

A remand in a CUE claim is for the BVA or agency of original jurisdiction, to correct the error and properly adjudicate the claim and determine what and how much the disability would have been, had they done things right at the time they made the mistake. The IMO could only be used, I believe, if the court mandated that one be used to evaluate the evidence, of records deemed before the agency of original juristiction, at the time of the CUE.

New evidence or a new IMO, that is new evidence, cannot be used in a claim for CUE.

Jim S.

[Guest Berta]

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.

"Under Diagnostic Code 7332, a 10 percent rating is warranted

with constant slight, or occasional moderate leakage. A 30

percent rating is warranted with occasional involuntary bowel

movements, necessitating wearing of a pad. A 60 percent

rating is granted with extensive leakage and fairly frequent

involuntary bowel movements. A 100 percent rating is

warranted with complete loss of sphincter control"

from http://www.va.gov/vetapp05/files3/0516285.txt

If I understand you correctly - the documented medical evidence showed -in a prior final VA decision-

evidence for 7332 DC yet the VA failed to rate it that way and used a different code-

then that would be support for a CUE claim.

I hate to keep bringing up one of my CUE claims- and expect my claims to be resolved soon-

(VA is awaiting an additional medical opinion) but it might help-

I had a final decision in which the VA failed to code the veteran's heart disease.

It was documented within the medical records yet misdiagnosed.I had proven to general counsel that he had it and their report went to the VARO.

His 1988 'sinus infection' and collapse I had subsequently proved -was a heart attack-

and he died suddenly due to advanced brain and heart atherosclerosis

(which Dr. Bash agreed was from his undiagnosed and untreated DMII-die to AO - evidence also in the med recs.)

The medical evidence that VA had at time of the lack of rating for heart disease clearly showed that the veteran had heart /brain atherosclerotic disease from at least 10% in 1988, both escalating to 100% in 1992, and causing his death in 1994. The decision I am cueing did list his brain disease (from DMII)

as NSC at 100 %.

My point is that- if the VA had medical evidence , as they developed a prior decision, that warranted a different diagnostic code, and that this error would have given the vet a higher rating (IE : mpre retro)

this can be the basis for CUE-

It depends on what evidence the VA had at hand when they made the final decision.

The medical evidence at that time would have had to warrant a valid diagnostic code and it would have to be consistent with a proper rating.

(my CUE here is most unusual --- the other one is much easier for them to grant-but if you forget the misdiagnosis issue- you have a complete lack of diagnostic code-

yet the evidence was at hand for a code and a rating-

and it would have put the veteran into a higher SMC status that Nehmer will cover-yet it still leaves the CUE in the prior decision.)

It makes sense- if an adjudicator has the medical facts and then errors in application of the regs-prevalent at that time-

and the veteran does not appeal the decision- luckily- years after the fact- the veteran has a chance to correct the error. But if the error did not involve more retro- a CUE has not been committed.

My other CUE- NO SMC due the vet- 1998-

I never appealed this-

Found out that Section 1151 disabilities are due SMC ! (per OG Pres Op I found)

then I needed proof that the veteran's 1151 disabilities were in fact Sec 1151 disabilties.

The award letter granted Section 1151 solely on his death, never stating specifics, and it denied SMC.Had a fiasco with CHAMPVA last year because - VA had stated in documentation to CHAMPVA that the veteran's P & T disabilities were due to Sec 1151.

Then - when VA immediately corrected that with CHAMPVA (I raised all sorts of hell as my CHAMPVA is based on the vets SC 100% P % T award) I was still ticked over the error then I was elated because I had proof from the VA that the veteran had 100% P & T disabilities under Sec 1151 !)

So-1. Final decision never appealed-

2. Improper application by VA of the SMC regs at time of decision (supported by the OG Pres Op re ec. 1151 disabilities)

and Absolute proof that not only did the vet die from VA care, the veteran's other totally disabling disabilities were also from that lousy VA med care.

CUE was committed in failing to award the veteran posthumously SMC-from "S" 1991-1992 to "M" 1992 to 1994. The error, had it not been made ,would have manifestly altered the outcome of the CUed decision.

[Angela]

Berta,

The VARO actually rated using the correct code (7332). The problem is that the criteria for 100 % is "complete loss of sphincter control" , where all other percentages for the the same code address leakage and involuntary bm. Doctors don't "on their own" address complete loss of sphincter control and instead discuss degree of incontinence. That disparity allows the VAROs to rate at less than 100 % just about everyone with this disability.

I've found case law that shows that the BVA has, in the past, read this DC "in the context of the rating criteria for the lower percentage ratings" and concluded that "complete loss of sphincter control is to be determined by the degree and frequency of bowel leakage". Now, my problem is that I guess I just don't trust the VA to rule as I know they should. Will referencing this case law (and others like it) cause them to rate appropriately (my medical documentation that they failed to consider states complete incontinence) or will I end up in an endless round of denials?

I'm trying to make by claim for CUE as "undebatable" as possible before filing. I also have major depression and I'm not sure I'll have the mental stanima to withstand endless denials. To be honest, I really think my claim is ready and probably as strong as I can make it now and that I'm delaying because I might not handle the (inevitible?) disappointment if the VA once again misstates the case, misreads the claim, or takes many of the other avenues they like to take in order to delay or deny a valid claim.

I guess my question is... do I have to prove BEYOND A REASONABLE DOUBT that they would have rated me at 100 percent if they'd considered the evidence? Or do I just have to prove that they SHOULD HAVE rated at 100 percent - based on the case law? I may not have stated the distinction well between the two questions but because of the way DC 7332 is written for 100 verses the lower ratings, it seems that they can just get away with saying that unless the evidence specifically stated "complete loss of sphincter control" they didn't HAVE to rate 100 percent, so no CUE.

Your thoughts?

[Guest Berta]

This is all you need to tell them:

To VARO:

This is a claim under provisions of 38 USCS 5109A.

I believe that the VA committed a Clear and Unmistakable error in an unappealed decision which I received on (date)______. The VA, at that time, rated my service connected disability at Diagnostic Code 7332, which allowed for 100% rating,based on my medical records in VA's possession at that time, yet failed to appropriately compensate me as I received compensate for a percentage under 7332 that was comparable with a 60 % rating.

I have enclosed copy of the prior rating decision and percentage awarded (if you have this)and also copies of undisputable documented medical evidence in VA's possession at time of that decision which warranted the 100% rating.

That is all you really need-to file this claim-

Myler V Derwinski is a good example of how this works-

The veteran had a gunshot wound which went right through his arm and it healed.

The VA denied compensation as it felt there was no compensatable rating they could assign.(1953)

The vet CUED this many years later and The Court (CAVC)held that the bullet had passed through Muscle Group XIII, by undisputable medical evidence, and thus the veteran had suffered a disability.

If undisputable medical evidence ,in VA's possession allowed -at time of the final decision you are CUEIng-

for a 100% rating, than this is a valid CUE claim.

That was the point of why I again stated my CUE on Rod's heart disease-

The VA had -in their possession in 1997-undisputable medical evidence of significant heart disease yet failed to rate the veteran's heart disease at all in a final decision.

The other CUE I have on SMC-

the VA had in their possession undisputable medical evidence that the veteran had two disabilities under Sec 1151 at over 100% disabling,plus a 100% direct SC disability, yet failed to consider VA regs in place at time, that state that Sec 1151 disabilities will be considered for SMC compensation.

They rated one of the 1151s (Brain damage) at 100% but even then they failed to consider SMC under the "S" award per VA regulations at time of alledged CUE.100% plus 60%

Undisputable medical evidence in VA's possession at time of final decision lending to a higher percentage and rating is -on it's face- a CUE.

Edited November 6, 2005 by Berta