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

[Rockhound]

John999: Yes I was booted out of the Navy for a psychiatric reason. Diagnosis,

Acute Schizophrenic Episode, in remission, demonstrating moderate impairment with social and industrial adaptability, associated with depression and anxiety.(0 %) DC 2954 VA DC 9205, & Fracture of Nasal Bone DC 8020 VA DC 5299 (0 %) & Minor Cerebral Concussion, Frontal Lobe

DC 8500 (0 %)

The VA, without proper cause or by proper statuary and reglatory provisions, changed the diagnosis of the acute schizophrenic episode, in remission to a personality disorder, subjugating any of the adjustment disorder with depression and anxiety with that change.

I tried once to explain it to a VSO but he said he wouldn't touch it. I even submitted one to the VARO and they ran with it as a new claim to reopen with new and material evidence. Before I knew that they had done that, I had another denial in my C-File for nothing new and material to open claim. Tried one for reconsideration, but that one seemed to only be look upon as a claim for increase on my fractured nasal bone. Everything was messed up and I think, but cannot prove that it was the VSO who messed it all up. Once by a AMVET SO & the other by a DAV SO

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.

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

Rockhound

[cowgirl]

Rockhound, dont recall, a few questions that may help you present discussion for the IMO.

Do you know what DSM was in effect at the time of your diagnosis? thats important

Do you have a copy of the C&P that 'changed' your diagnosis? or what Dr. changed the diagnosis?

Have you been recieving care for Acute Schiz at VA? If so, for how long, since discharge? recent?

Best to ya, cg

John999: Yes I was booted out of the Navy for a psychiatric reason. Diagnosis,

Acute Schizophrenic Episode, in remission, demonstrating moderate impairment with social and industrial adaptability, associated with depression and anxiety.(0 %) DC 2954 VA DC 9205, & Fracture of Nasal Bone DC 8020 VA DC 5299 (0 %) & Minor Cerebral Concussion, Frontal Lobe

DC 8500 (0 %)

The VA, without proper cause or by proper statuary and reglatory provisions, changed the diagnosis of the acute schizophrenic episode, in remission to a personality disorder, subjugating any of the adjustment disorder with depression and anxiety with that change.

I tried once to explain it to a VSO but he said he wouldn't touch it. I even submitted one to the VARO and they ran with it as a new claim to reopen with new and material evidence. Before I knew that they had done that, I had another denial in my C-File for nothing new and material to open claim. Tried one for reconsideration, but that one seemed to only be look upon as a claim for increase on my fractured nasal bone. Everything was messed up and I think, but cannot prove that it was the VSO who messed it all up. Once by a AMVET SO & the other by a DAV SO

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.

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

Rockhound

Edited January 14, 2008 by cowgirl

[Rockhound]

Cowgirl: answers

(1) Do you know what DSM was in effect at the time of your diagnosis?

Answer: DSM II was in effect, but have not been able to find a copy of it yet.

(2) Do you have a copy of the C&P that 'changed' your diagnosis? or what Dr. changed the diagnosis?

Answer: Yes I have a copy of the C&P examiners report, and at no time did he say that his

current diagnosis of a personality disorder, inadequate type was and alternate

diagnosis, nor does he say that the original diagnosis was clearly and unmistakably

in error.

As best I can see, in reading the C&P examiners report is that it was the VA

Adjudicator that made the call, with out the proper cirtification that a change

of a diagnosis was being proposed, nor is their any mention of his recommendation

going to Central Office like they were supposed to. No if approved by Central Office

did I get the required (60) sixty day notice to offer evidence in support to continue

my service connection.

93) Have you been recieving care for Acute Schiz at VA? If so, for how long, since discharge? recent?

Answer: The Acute schizophreic episode remains in remission, but the adjustment disorder with depression and Anxiety continued. Treated briefly only once for depression and anxiety, which only showed I would have only been rated at 30% at most, since I could function to some degree in sociaty, but had difficulties in work, day to day living, poor college record, failed marriages, depression and anxiety. Currently I have had a ferm diagnosis of an Adjustment disorder with depression and anxiety, rated for pension purposes only at (50 %) fifty percent, which is four year now and if anything has gotten worse, even while on some strong medication and begining to have schizoprenia thoughts and idealations. If I sound a little wierd at times of confused, blame in on the meds. LoL

I was discharged from the Navy Sep 1973, you can do the math.

Rockhound

Edited January 14, 2008 by Rockhound

[Berta]

"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"

These are good points that COULD be basis for CUE-

The old decision might well contain the regs they used-

Then again did they say the claim was not well grounded?

A copy of the older claim decision -have you checked your c file for it-should reveal whether a CUE was committed.

CUES prior to July 1992 often come under the Bell Decision-

After Bell the VA must have been in "constructive possession" of all claims evidence -

Bell is explained here under a search feature or FAQ topic

However this is a good point too-

"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."

I have claim from 1995 that I considered an open issue-

in a letter the VSM sent me in Jan 2006 her statement indicates the claim was Not open but covered by an award I got for a different claim-

I wrote back -so where is the money- and said her statement supported my point- that this claim was still open and unresolved until she made this Jan 2006 statement in her letter to me.She herself resolved the issue and granted the claim.

God knows what they are doing about that one now.

Edited January 14, 2008 by Berta

[john999]

The diagnostic code of 9205 is residuals of schizophrenia and is a type of schizophrenia. You are right to try anyway you can to get a IMO. This is probably the only way you can fix this damn thing without spending years in appeals, and arguing about the number of angels on the head of a pin. A shrink worth his salt could see that the VA pulled a fast one just to not have to compensate you. They tried the same thing on me 13 years after I was service connected for the same thing as you more or less. I was suffering from dissociative and panic disorder so they just stamped schizophrenia on my chart and then because I was not psychotic tried to take it away. Typical VA and DOD incompetence and "don't give a shit" work ethic.

[Rockhound]

Berta: As far as I can tell, the only things that the VA Examiner had to go by was my history I could give him, a short report from the VA hospital I stayed at briefly while waiting for my final discharge from the Navy. Most of the time I spent at home on leave from the Hospital, the report only lists a history of the Psychotic Episode, and my Medical Board report on their findings. At no time did the examiner provide or quote any tests or examinations other than his observations he made during the taking of my history. 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? I can't look into a crystal ball and say had they not commited cue, they would have sent the examiners report back for clarification and certification of an alternate diagnosis was proposed, or that they would have sent the report and certification to the Central Office for their approval, or that they would have then given me (60) days to respond with addition evidence in support of my claim.

The question of manifestly changing the outcome is very confusing and I haven't been able to find anything on point that explains it or a case similiar to mine when a change in the diagnosis was made without following the proper steps to do so.

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