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

[cowgirl]

Rockhound, I see something interesting in your post. Am I reading this right, that you had the VA physical before being boarded out of service? maybe I missed something. does your SMRs show that diagnosis thats on your discharge?? Again, if you get to look at your Cfile, I hope it sheds light on things.

I have a few differing mh 'diagnosis's' in my SMRs. But when I look at my VA diagnosis, I believe its a result of the VA C&P and oddly stated at that,ignoring my smr's. In fact, I just recalled my code sheet at the VA that shows what I am service connected for and it showed a different title than what I was rated for, oohh, I better go look!. I too, am investigating how the VA declared my earlier rated diagnosis for probable CUE here. IF I find DSM II, I'll let ya know, must be somewhere. I think my mh diagnosis's are in DSM III & IV. The best to ya, cg

"A physical was done and that was all. Nothing other than his opinion to make his diagnosis of a personality disorder. Which doesn't meet the standard for certification even if he spicifically stated that he believed the diagnosis was in error and said his was the correct one.

My belief has been and will always be, that the claim is still open, because the issue of the Acute Schizophrenia Episode, in remission, demonstrating moderate impairment to future social and industrial adaptability, associated with Depression and Anxiety, is still open, since the issues has never been properly or not at all for that matter, been adjudicated for Compensation and Pension purposes.

Question: If CUE is shown to have occurred and if it is shown that the VA Examiners report was insufficiant for rating purposes, and that the claim is still open, would that be an argument had it not been for Cue, this would have manifestly changed the outcome of the claim? It's too early for me, still in a fog, but my cat was hungry and wouldn't stop bugging me till I got up and fed him. He bites when I ignore him. LoL

Rockhound

Edited January 14, 2008 by cowgirl

[john999]

I believe that the VA has changed my diagnosis every time I have gone for a C&P exam. It started at schizophrenia then major depression and then Bi-polar disorder. After that it went back to residual schizophrenia and then off to panic disorder, dissociative disorder, schizo-affective disorder, chronic pain disorder, agoraphobia and PTSD. Grab a diagnosis if you want I have plenty. The basis of all these changes was inadequate I am sure. Oh, and I was diagnosed with personality disorder as well as a bonus. Based on this I got 10% in 1973. I could not work or even leave the house for months at a time and I got 10%. The system we deal with is much sicker than we are. I just don't know if a change in diagnosis under any circumstance is enough for a CUE. The implications for rating purpose of a diagnosis can be a CUE I know.

[Rockhound]

cowgirl and everyone: Again, my problem started while I was still in the Navy, spent two months, according to my records, but I somehow remember it as three. The Navy Dr's and Psychiatrists are the only ones who tested, examined, and observed me, thoroghly as shown by the report from the medical board findings.

The examination done by the c&p DR. was cusory at best. making his opinion solely on the records the VA gave him to look at and from the verbal history he took from me. At no time did he give me any tests nor examination, other than a quick physical to come to his opinion of his diagnosis of a personality disorder.

At no time did he provide cirtification that the original diagnosis was in error nor that his was to be used as the corrected diagnosis.

I think I best just stop trying to explain all this, I don't seem to be making my self clear on this.

The VA Adjudicator did not follow procedure when they used another diagnosis to deny my claim for service connection. Not only am I having trouble explaining it here so everyone will understand, I can't seem to get this fact understood by a VSO or the VARO when I submitted a previous claim for CUE and they took it to mean I was reopening the claim with new and material evidence, which I wasn't.

Maybe its the Meds I am on, I'm confused and frustrated and at a lose as what to do. Oh boy its crying time again, got to go take a chill pill or its lights out.

Rockhound,

Edited January 14, 2008 by Rockhound

[e.greeley]

Rockhound, you said

"I need IMO's on everything, so on Wednesday I am going to Adult Mental Health Services, A State run Clinic at our local State Mental Hospital and see if I can afford their sliding scale ability to pay fee and maybe get to see a psychiatrist who can and is willing to help me with an IMO."

I had an appointment today with VA clinic with a APRN, BC to renew my medications. After getting spanked for missing appointments and not seeing a doctor, I did not feel comfortable asking her for help with my TDIU. I talked to her over the TV too, okay for renewing meds, but sort of a loss of the personal touch. The DO at the clinic said (under her breath) I had a good case for unemployablity. Should I ask her to write an IMO? I am so afraid of making the wrong choice that I make no choice.......sigh MDD is wearing me out.

"Sorry rambling agsin, the thoughts just poor out and I got to say them."

yeah, me too. i wanted to say that was a good idea to go to the state mental hospital to get an IMO, I think I will try the state and the county.

i just need to make an appointment with the college interns nearby (they help vets for no fee!!) to get some help.

e.greeley

[cowgirl]

I am sorry that I inquired too much and seem to have frustrated you. Hope you understand that Berta, Tbird and most all others here have alot more experience as well as others, I am still learning so much. Again, I think you are on track and doing grand.

I did acheive my change of diagnosis thanks to Berta, tbird and many patient others here

In a nutshell, I filed for diagnosis of depression, using a current IMO/diagnosis, it changed up to mdd keeping my other mh diagnosis as a portion (mdd with ."old diagnosis'..........).

Thanks to Hadit,my rating went from 10% to 30%, overall to 60%, getting much needed compensation for my issues.

I was discharged over a decade ago and filed then, but have learned my frustrating claims history is short compared to many.

But.... I still didnt get the correct Effective date, my current dilema, so I am interested in your CUE process. Again, I will read more and respond less, Best to ya, cg

Edited January 14, 2008 by cowgirl

[Rockhound]

It's Ok cowgirl, my bad. My Cat woke me up to early and I was still a bit fuzzy from last nights meds and when I went to take my chill pill, found out I hadn't taken my morning meds. Well medicated now. again, my bad. I should be good to go after a bit.

Rockhound