Question On C.u.e.

[Rockhound]

I'm pretty sure that I have figured out how to present a CUE claim, except when it comes to where, for CUE to prevail, it must manifestly change the outcome.

I can prove that the VA Claims Adjudicator failed to apply pertinate statutory and regulatory provision extent at the time that caused the clear and unmistakable error,

But I am having trouble understanding what "Manifestly change the outcome" means. what types of outcomes are we talking about?

In my case, although it concerns a change in the original diagnosis to an alternate diagnosis. The adjudicator failed to follow statutory and regulatory provisions extent at the time, i.e.

1. He did not get cirtification from the examining physicain to support the change of a diagnosis

(a) certification must contain a summery of the facts,findings, and reasons that support the

change in the diagnosis.

2. Their is nothing in the records that Adjudicator then considered what the change ment,

since he did not have the cirtification from the physician to guide him.

3. Their is nothing in the records that once the Adjudicator considered that severance of

service connection was warrented, a rating was prepared setting forth all material facts and

reasons, and submitted it to the Central Office for review.

4. and lastly, if it had gone to the Central Office, although their is no indication it did, and was

approved, the claimant was supposed to be given 60 days for presentation of additional

evidence to show that service connection should be continued.

Since the VA Examiners report did not have the certification that the original diagnosis was clearly and unmistakably in error and that his new diagnosis was the correct one, the VA Adjudicator could not make a determination or a medical opinion of his own and use this new diagnosis as an alternate one. Since the VA Adjudicator failed to send the report back to the VA Examiner for clarification, the report can only be interpreted that his diagnosis was a new and seperate diagnosis.

How do you show, how all this would Manifestly change the outcome of my claim.

I know that the evidence by the conferance of Naval Dr.'s and Psychiatrists would outway the VA Examiner's ambiguous report, at best, with his present diagnosis, since he states in his report that he could not solidly support the original diagnosis based solely on the history and not on any tests, exams or observations any longer than the exam itself, that he conducted, to support his opinion. Again, he based his whole opinion on the history, that it would be difficult to substantiae, in his opinion a solid diagnosis of schizophrenia. Not with standing or consideration, that the disorder was in remission, at the time of the examination.

It appears to me that the VA Examiner's report was insufficiant for rating purposes, so how do I prove that my claim would have manifestly changed if the report was so lacking. They can't go back and ask for clarification from the VA Examiner, or for that matter, the VA Adjudicatior either. It's almost as if the claim remains open, since the question of service connection of the original diagnosis from which service connection was predicated upon was never legally adjudicated.

Anyone want to run with this and give me their opinions and/or questions?

Rockhound

[john999]

With a CUE you have to show that but for the error made by the VA the outcome of the rating would have been manifestly different. That means like night and day. Based on the CUE your claim would have been granted and not denied. No other factors but the CUE caused the claim to be denied. This is how I read it. That is why it is so hard to win on these things. I know it is more complicated than that but that is one major aspect to it.

[Rockhound]

John999: That's what I am saying. Had their not been an error, the Examiner's report wouldn't even hold up to the scruitny of what it takes to make a change in a diagnosis. So not proving the personality disorder was an alternate diagnosis and the examiner not being able to concure or disprove the findings of the Naval medical board, the examiners report is worthless as evidence for rating purposes and since the Navy Medical board was loaded, with the test, exams and observation done or taken, then service connection should have been awarded.

Heck, I can't even get an IMO to concure with me on the matter, because he wasn't their at the time and any report written afterwards isn't admissable. It isn't even a matter of interpretation, it a matter of how the Adjudicator didn't apply the statutes and regulation extent at the time.

All worked up over this every time I think or write something about it.

Rockhound

[Rockhound]

Another question on C.U.E.

If a person wins their claim of C.U.E. and service connection or rating or whatever is restored or in my case would be to finally get my inservice diagnosis restored, what criteria then would they use to determine amount of disability. Would they use that which was in 1974, when the CUE occurred or the more liberalized diagnostic criteria that is used now using the DSM IV and current schedule for rating disabilities?

Am I making any since?

Rockhound

[Berta]

The rating would that which was proper at time of alleged CUE-and would consider any rating schedule changes during the CUE period.

In other words if a SC was coded with wrong diagnostic code and then rated wrong at 10%-but the CUE revealed 30% was appropriate-then the 30 % would be the retro for the period of alledged CUE up to whenever the rating went to 30 at the RO.

CUE claims at the BVA- whether denied or awarded and also at the CAVC are an excellent source of understanding this type of claim.

I like the denied ones as much as the ones that do succeed-because the rationale is in them for why they were denied.

[Rockhound]

Berta, thank you first of all for you continued support and information on CUE issues.

Their was no rated SC problem because of an alternate diagnosis of a personality disorder was used. I am not arguing CUE for the alternate diagnosis, The diagnosis was made, but that the adjudicator did not apply the staturary and regulatory provisions extent at the time in order to determine that such a alternate diagnosis was in actuality made.

Since their was no determination that a rating could be applied to. then how do they then determine where the rating should begin and which rating schedule would they use, the one in 1974 or the one now.

[john999]

Rockhound

When you were boarded out of the Navy what was the diagnosis and did you get a rating? Was it a medical discharge? You may have said this before but I don't remember. It is incomprehensible that the VA would have overruled the Navy Board and denied compensation. It is usually the other way roung. You are asking tough questions that are technical and need to be sorted out by a professional I think. Berta says to look at past BVA and COVA decisions and that is how the lawyers do it.

I think you have a gripe on this thing, but you will have to be patient and really break it down for anybody at the VA. They won't understand and will just deny it based on lack of understanding of the technical aspects to your claim.