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]

I pretty sure this will help my CUE claim: All I got to do is find it written in 1974. I copied part of it, but I must have either been copying something else of misplaced part of it, but here is the current reading and it pretty much hasn't changed any that I can tell.

§ 3.103 Procedural due process and appellate rights.(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(B) The right to notice —(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (B)

(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

I've undlined terminated and adversely affected. because that is what their decision did to my claim and no I did not get a 60 day notice. nor was it shown to have been given in the summery of evidence or rating decision, statement of their findings, or any copy of a letter advising me of these rights. I can not even remember if they advised me of the other rights 3.103 gives a claimant. Such as the right to a hearing, etc.etc. etc.

Rockhound

p.s. will be going in, in the morning to see the AMVET managing VSO. I'm really anxious to find out what he thinks or knows about CUE claims. I hope his attitude has changed with time. we'll see. LoL

[Ricky]

Rockhound - I have seen you ask several times if someone could explain the definition of manifestly change the outcome if it had not been except for the CUE. Let me take a swag at it for you my good fellow.

First lets take a look at the term in general: To mainfestly change something simply means to obviously change something. So simply put it means that the denied rating that a veteran has received would have obviously been an approved rating if the VA had not commited an error.

Now to the specifics of your situation. The meaning of the term and what YOU have to prove inorder to succeed in a CUE claim on your case is: Your currently denied rating for a mental health issue obviously would have been awarded (or surely would have been approved) if only the idiots at the VA had completed the proper steps in changing your diagnosis.

What this means to you is that you can not scream CUE to keep your claim alive and only simply prove that the VA has changed your diagnosis without first completing the proper steps. (very easy to prove.) ----- You have to also prove that this omission of the proper protocol (and this omission alone) actually caused him to change the diagnosis. I do not think you can prove the second requirement. His diagnosis was his diagnosis and was based upon his or lack of his medical expertise whether he completed step 1,2,3 or not. Please do not throw arrows at me. I am not saying that his diagnosis is correct for I am not a doctor. I am simply saying that just because he did not complete steps 1-3 does not mean that he would have reach any other decision other than the personality disorder that gave you.

The board's view of your claimed CUE will be - Yes sir, a procedural error has occured in your claim. In order for the doc to properly change your diagnosis he has to do a,b,c and d. However, even if we tell him to do a,b,c and d the outcome will be that he has/will change your diagnosis based upon his medical expertise, therefore, no CUE exists because even if the procedural error is corrected the end result will be the same.

As you can see claims of CUE are very hard to prove. Lets look at another quick claim. Lets say a veteran has a diagnosis of XXX disease and the VA service connects the diease. CFR 38 states that a veteran with XXX is to be rated at 100 percent for a period of 6 months, then re-evaluated and the residuals are to be rated with a min rating of 10 percent.

Rater dummy rates the claim. On the initial rating he provides service connection for XXX with residuals and issues a initial level of disability rating of 10 percent. What happened to the 100 percent for 6 months????? What residuals???? Rater Dummy has not even waited the six months to rate the residuals. How did he rate the residuals without any input from a doc???? He ain't no doc so he must send you in for a C/P at the end of 6 months!!!!! This is an improper application of the regualtion/procedural error. Now if the veteran screams CUE would he have a CUE claim. YES.

Can you see the difference????? The outcome of the decision will obviously change by making the VA change the error. The veteran will now receive a 100 percent rating for 6 months, a C&P will have to be scheduled to properly rate the residuals of the veterans disease of XXX. The mere fact that the VA is directed to follow the regulation in this example means that now for the first six months the veteran will receive 2900.00 per month Vs 110.00. I would say that is an obvious change!!!!!

Hope this helps.

Edited January 15, 2008 by Ricky

[Rockhound]

Ricky: No arrows accepted, no arrows intended. So what your saying is that the following have no basis for CUE? What I am saying is that they could not provide the certification of their assumption or findings, so they made up their own.

The examiners report clearly states "at the present time" he was diagnosing a personality disorder, inadequate type. Then goes on to state he could not solidly support the schizoprenia diagnosis by the Navy Medical board. nothing said about a change in the diagnosis to say their was one. As far as the report read, he was offering a new and seperate diagnosis and he could not solidly put his support behind the Navy Medical Board Findings.

My argument is that had not the CUE occured, they would have had to take the report as is: The examiner was opinioning on a new and seperate diagnosis and he personally could not support the findings of the diagnosis of schizophrenia. He did not however say it was wrong either. The the evidence I provided out weighed the examiners and SC should have been awarded.

Sorry rambling. I just get a bit worked up over this

(1) 38 C.F.R. 3.105 (a) Revision of Decision (d) Severance of Service Connection (1973)

(a) Error. (In part) Previous determinations on which an action was predicated

including decisions of service connection, degree of disability, age, marriage, relationship,

service, dependency, line of duty and other issues, will be accepted as correct in the absences

of clear and unmistakable error. Where evidence establishes such error, the proper decision

will be reversed or amended.

(d) Severance of service connection. (In part) Subject to the limitations contained in C.F.R. 3.114 and C.F.R. 3.957, service connection will be severed only where evidence establishes

that it is clearly and unmistakably erroneous (the burden of proof being upon the Government)……

A change in diagnosis may be accepted as a basis for severance action if the examining

physician or physicians or other proper medical authority certifies that, in the

light of all accumulated evidence, the diagnosis on which service connection was

predicated is clearly erroneous. This certification must be accompanied by a summary

of the facts, findings and reasons supporting the conclusion. When severance of service

connection is considered warranted, a rating proposing severance will be prepared setting

forth all material facts and reasons, and submitted to Central Office for review without

notice to the claimant or representative…….If the proposal is approved on review by

Central Office, the claimant will be notified at his latest address of record of the

contemplated action and furnished detailed reasons there for and will be given

60 days for the presentation of additional evidence to show that service connection

could be maintained

38 CFR 3.103 Procedural Due Process and appelate rights

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph ((3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

USC 1111

<H2 style="BACKGROUND: white; MARGIN: 12pt 0in 3pt">§ 1111. Presumption of sound condition</H2>

For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

[Rockhound]

What I am trying to say, that niether the VA or I can look into a crystal ball and say what would have happened had CUE not occured. Only that the claim has not yet been properly adjudicated upon and the claim remains open. that is how the error manifestly changed the outcome. their hasn't been a legal decision on the claim, one way or the other yet.

Rockhound

[cowgirl]

I wonder, could it be possible that you get an IMO that states more likely than not your nsc issue is current, even though in remission? That way, you could apply for sc first, then go after the CUE. Do you have current doc that could help with that? or am I way out in left field with the donkeys? cg

What I am trying to say, that niether the VA or I can look into a crystal ball and say what would have happened had CUE not occured. Only that the claim has not yet been properly adjudicated upon and the claim remains open. that is how the error manifestly changed the outcome. their hasn't been a legal decision on the claim, one way or the other yet.

Rockhound

[Rockhound]

Cowgirl, I doubt anyone would think your ideas are out in left field with the donkeys, unless that is what you ride these days. LoL

I am going in to our State run Adult Mental Health Clinic on Wednesday to see, first if I can afford them and second if they can help me with an IMO. If I can afford them, their is a four hour intake clinic I must go through first to evaluate where I am right now, I guess. It's not a pretty picture. I'd stop my meds, just to give them a better picture, but I am afraid I might hurt either myself or someone else, going cold turkey like that. I could well wake up in a locked hospital ward, but I am only guessing. That's what has me depressed and ancious all the time. I have been scared and I still am, that what happened thirty plus years ago could happen agian and this time someone will get hurt or worse, killed because of my Schizophrenia, that has for the most part stayed in remission, except for recently I have been having schizophric thought and idealation that come out while I am asleep. I keep thinking someone is talking to me, or I hear someone at the front door knocking, but when I get up to check, no one is their. Then their is the thoughts that the police are chasing me with their guns drawn. If these weren't schizoid thoughts and idealations, then why does my shink have my on Quitiapine

I need to sleep now, got a big day ahead, hope I can sleep without my sleep meds, can't function early enough if I do to get dressed and all. 07:20 pick up call to take me into town.

Rockhound.

Thank the Great Spirits for pain pills and psych drugs.