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?
Question
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
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