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Question On C.u.e.

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Posted

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 :blink:

Are you a paranoid schizophrenic

if the ones you think are out to

get you, really are?

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Posted

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

Thanks for clarifying. Now I am not a MH type of guy. Not yet but the VA is turning me into a veteran who is goig to have to have MH help pretty soon! You say he is diagnosising with a current disability of PD and he can not support the previous diagnosis provided by the Navy. In the VA claims world the C&P doc or your doc must provide an opinion that your have a current disability and that that disability must have manifested in service in order for the VA to SC the disability. So in summary what the C&P doc is saying in your case is currently you have PD. PD is not a disability for which comp is paid according to the VA. Still I am having a hard time here with the CUE. He did not change your diagnosis, he has stated that your currently diagnosis according to all his training and knowledge is PD. There is no CUE there.

Now I am in no way pro-VA just providing what the rater must do based upon the medical evidence he has in front of him. Looks to me like you are dealing with an inexperienced rater. If I were the rater in this case I would have sent the C&P back to the doc and said ok, the navy said he had schizoprenia and you are now saying nope he has a PD. You must review your findings and fully support your decision based upon current accepted medical doctrine. For even I as an old dumb *&^ layperson know that a MH issued as schizoprenia don't cure itself! I truly believe that you are going to have to get a doc to say that you currently suffer from schizoprenia and it is the same as that diagnosed by the Navy. Another statement that the VA doc is wacky backed up with a good rational would not hurt either. I truly believe that no matter what procedure the doc must follow to actually change your diagnosis to PD he ain't gonna change the diagnosis in the end. But hell my friend I may be out in left field all by myself on this as all of my comments on this is just my opinion. I truly believe a good IME with a current diagnosis of schizoprenia linking it to the diagnosis in the Navy backed with a good rational will spell success for you on this claim. However, I am with you and wish you the bestest of luck no matter how you decide to continue with the claim. God bless you and make sure you get treatment for your disability on an ongoing bases for MH disabilities are the ones that take the greatest toll on a veteran, his family and his life in general. Now look who's ranting. I hate it when the VA screws with a deserving veteran.

Posted

DON'T STOP YOUR MEDS BECAUSE OF ANY IDIOT AT THE VA!!!!!!!!!!!!!

Posted

No! No! The meds stay, the boggy man stays away. LoL

I can't say I don't mind the personality disorder diagnosis, heck after what I went through back in 1974 could well have changed my personality. But the examiner didn't say one way or the other. He didn't even find the diagnosis of the psychotic episode as wrong. He only said he could not solidly support it himself. So as far as I look at it, the personality disorder is a new and seperate diagnosis from another Dr. and that the original diagnosis still stands. but that it was the adjudicator who made the medical assumption that a alternate diagnosis was being offered and that is and always will be, way beyond his authority to do.

I'm just ranting now, off to bed.

Rockhound zzzzzzzzzzzz

Are you a paranoid schizophrenic

if the ones you think are out to

get you, really are?

  • HadIt.com Elder
Posted (edited)

Okay, Rockhound, now its all its about you and the cat, keep in contact and best to ya, cg

I just found my original psych C&P diagnosis PD and dysthimia. SOC shows denied for psych problems (depression or ptsd w/mst) No mention of 'dysthimia' on SOC, VA said possible ptsd re assault, not of any current impairment to warrant a finding. mentiond 'adjustment disorder' in service and greif reaction. (hospitalization 2 weeks!).Currently rated at 30%, for mdd (10 years later!!) 'manifest outcome' seems key to much, time for CUE, lets roll!

No! No! The meds stay, the boggy man stays away. LoL

I can't say I don't mind the personality disorder diagnosis, heck after what I went through back in 1974 could well have changed my personality. But the examiner didn't say one way or the other. He didn't even find the diagnosis of the psychotic episode as wrong. He only said he could not solidly support it himself. So as far as I look at it, the personality disorder is a new and seperate diagnosis from another Dr. and that the original diagnosis still stands. but that it was the adjudicator who made the medical assumption that a alternate diagnosis was being offered and that is and always will be, way beyond his authority to do.

I'm just ranting now, off to bed.

Rockhound zzzzzzzzzzzz

Edited by cowgirl

For my children, my God sent husband and my Hadit family of veterans, I carry on.

God Bless A m e r i c a, Her Veterans and their Families!

Posted (edited)

Its off to see the Wizard, If you can ever think of a VSO as a wizard. LoL

I will be taking with me what I could find of my file. Can't remeber half of things and where I stored them. But I have everything for the 1974 claim, and quite a bit of of my subsequante claims, not all but pretty close.

I need to go by SSA and get the reason for their decision, so I can see what they wrote up, but if my memory is any good, it deals only with my physical problems, which have never been anywhere close to being service related.

Then if their is still time, I might stop by my Congressman's branch office and talk to his representative their, who handles the local VA problems.

I'm not going to file any claim till I can be sure what would be best. May just try for an increase for my fracture nose and deviated septum and how it exasserbates a NSC condition of Nocturnal Hypoxia with Mild Obstructive Sleep Apnea. But not in a hurry, got to get my IMO first on that issue.

Tomarrow I go to Adult Mental Health Services to see if they can or will help. So two full days, I hope I can stand being in my electric chair that long a time. 10 hrs today and 12 hrs. tomorrow. Oh Boy! I'll be one tired puppy, hope my Cat remembers who I am. I hate it when he bites. LoL

Rockhound :blink:

p.s. Don't know what happened but I hit the wrong button and it triplicated my post with in the same post, so I had to edit it.

Edited by Rockhound

Are you a paranoid schizophrenic

if the ones you think are out to

get you, really are?

Posted

Rockhound,

You posted "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"

The error has to be very, very clear. I still don't see grounds for a CUE claim.

jmho

carlie

Carlie passed away in November 2015 she is missed.

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