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

[carlie]

Rockhound,

You posted,

"He also said if I sent anything directly to the VA without going through him first, he would drop me like a hot potatoe. I don't know what that was all about. Why wouldn't I want to do otherwise, if he doesn't know what I am doing or what the VA might have sent me, how can he help me when needed?"

After you have signed on with a VSO or ORG - as your POA they have Carte Blanche Authority in handling your claim.

They DO NOT have to contact you for anything, they do not have to call you back, some are helpful, some are harmful.

They can submit paperwork to VA that you know nothing about --- and your then pretty much stuck with what they

have submitted or DIDN't submit.

VSO's can be great help or crap, just like anything else in life. I know of VSO's that have been trying to get their own PERSONAL VA CLAIMS granted for 10 - 12 years, and haven't yet been successful, with their own claims.

BUT, unless you have tons of time to learn and research and keep up with filing paperwork and evidence on your own,

paying attention to all the time frames then one might want a VSO, for a paper trail if nothing else.

In you quote above you asked, "Why wouldn't I want to do otherwise" My answer to that is many times a claimant will want to submit a certain claim or certain evidence and a VSO will tell them -- No, that claim will never get granted - it's a waste of time --- or NO, this evidence is no good -- let's not submit this, etc....

Hope this helps a vet.

jmho,

carlie

[Berta]

"He also said if I sent anything directly to the VA without going through him first, he would drop me like a hot potatoe"

Ha- my rep told me to send all my claims and stuff directly to the RO-he said he didnt need copies as the local office was just a clearing house-

The former rep I had there years ago sure had a different MOS and would submit everything for me with a 4138 with it to the RO (I sent it to them too just in case)

I helped a vet for this rep and he told the vet right in front of me to send the NOD I prepared and also a new claim for TDIU plus SMC- directly to the RO, wanted no copies, and gave the vet an envelope-when the vet came back 2 weeks later he kicked him out of the office-

long story- but this is only one of the situations that the Office of General Counsel is looking into on my behalf (and hopefully on the behalf of all other vets and widows this guy did this stuff to)

Some of these reps act like they are God- I can see this reps point in a way-of course he wants to know what you submit to the RO-

but if I felt a rep sort of threatened me in this way-

I would send him a copy of 38 USC 14.633-

what gets me the most is when a rep wants to prepare the NOD or the I-9- in some cases they do all that for the vet and then they sign it as the preparer-

In 1982 the VVA prepared not only my first VA claim but also my NOD etc-I thought that was SOP then-

when I got smart I realised there was nothing in his brief statements to the VA that even came close to my claim or what evidence I had.

Also some of these reps are too lazy to send the VA a 21-4138- acknowledging their support of your claim.

When the RO sees a POA but does not see any 4138 from the POA it seems to indicate the POA felt there was no merit to the claim.

Yet I have seen the BVA refer to POA 4138s that raised excellent evidentiary points that helped the vet to succeed.

We have a brand new Vet rep regulation- I spoke last week to the VA attorney who wrote this reg- there will be more oversight on these reps-by the VA-

Like I tild the VA lawyer- it is sure not enough oversight at all -but it is a start.

Might get some of them off their 'thrones'

[carlie]

Berta,

You posted,

" In 1982 the VVA prepared not only my first VA claim but also my NOD etc-I thought that was SOP then-

when I got smart I realised there was nothing in his brief statements to the VA that even came close to my claim or what evidence I had."

Man -OH -Man is that ever the truth, and my Form 9 that a VSO did ,totally sucked, it was so far out in left field.

Also, there is a Form 8 I think it is that they filled out in preparation for BVA -- they mucked-up the heck out of that also.

jmho,

Hope this opens some more veterans eyes ! lol

carlie

[Rockhound]

Just put me up against a wall and shoot me! I came one tearful outburst away from checking into the loony bin. Oh boy! Went to Adult Mental Health Services and what to my surprize, after calling them and explaining what my needs were, I was all prepared to spend four to six hours on an intake examination. But and a big But it turned out to be, they could not help me since I was already being treated by the VA.and even if I wasn't, I owuld have to go see them first to see if they would treat me.

Anyways, I lost all control of my emotions and nearly had a melt down. Had to go see my VA shrink to see If I needed another 72 hr. volentary commitment. But instead she doubled my Quetiapine Fumarate, to keep the boogy men at bay.

I think she finally realized that what I have been trying to tell her, was my dreams are to real to be just dreams, that I am not only schizophrenic, but darn near paranoid also. After this last fiasco, I just know the Government is out to get me, their out to put me in the grave so I won't be bothering them anymore.

Only one thing came of it and I won't know how it's going to work out. My shrink has agreed to look over my medical records that were used in my original claim that saddled me with a personality disorder. I asked her point blank if she thought I had a personality disorder and she said no she did not and that is why you won't find it in any of her reports. I said fine write it down that I don't have a personality disorder, but she wouldn't go that far until she has had time to do some of her own examing.

I have an appointment in a month, to give my increased meds time to level my emotions out again. We'll just have to wait and see.

I hope the increase in meds doesn't make me a drooling zonked out zomby. I think that would put me over the edge, I couldn't live like that. I was so worked up I couldn't even remember my shrinks name. Now that I have calmed down a bit I can remember it, go figure.

Sorry to unlode on all of you to this, but this is what happens when I get frustrated working my claim. It's a double edge sword. If I don't work my claim, I won't get whats due me and if I do and I get either stalled as in this CUE claim or run into a wall as in getting an IMO that will trash the personality disorder diagnosis. Every seanse in my body is whawned up like a bow string getting read to release.

Man I hate the thoughts in my head and the voices that are putting them their. Not quite thirty years I have been able to ignore them and only thought of them like a bee hive buxxing in my ears. But with my bad health and the stress I am under, not only in my claim, but just daily living, It's getting harder and harder to ingnore them.

I asked for an increase in my depression meds also and she said she could not do that, I am already at maximum dosage. That if it is still a problem in this coming month, she may have to go to some other and hopefully stronger medication to keep from hitting these terrible lows every now and them like today.

Wll I better go see to my Cat before he looses it too and bite my hand off when I try to pet him.

Sorry again about the rant, had to let some of it out before I take my increase in meds, for I am sure it will probably put me down for the night, and every night till I start to get a working madicnal level in my systom and hopefully get used to the residual effects when I wake up in the morning.

Oh by the way. I don't know about your VA outreach centers where you are, but here, they only help combat Veterans, I don't know if that is a general rule or if it is just particular to ours here. Limited funds means limited ability to do much of anything to help even Combat Veterans.

I' ll go now and leave you guys in peace for tonight. Don't have the where with all to put my two cents worth on anything but myself. Hope I am not coming across as stingy or conseted.

good night all, will read any answers whenever I wake up.

Rockhound :)

Edited January 17, 2008 by Rockhound

[Rockhound]

Feeling better guys. Felt like someone put a straight jacket on my mind their for awhile. I think I might have the "manifestly change the outcome" problem with my CUE claim figured out. Have some more rewriting to do first to make sure what's in my mind looks ok on paper as well.

Basically since the VA adjudicator accepted the VA examiners report as being sufficient for adjudication purposes, he is stuck with the wording and findings of that examiner. Since the VA examiners report will not hold up to scruitny. that is to say that their is no certification to say or show their was an error in the original diagnosis, then it won't support the adjudicators assumption of a diagnosis change and since the probative value of the Naval Medical Board evidence out weighs the VA examiners non compeling report, and given the benefit of the doubt doctrine, the decision should be revised so that the original diagnosis is reinstated and service connection restored so that the severity of the disablity can be assessed for compensation.

Neither one of us gets a second bite at the apple. they broke the rules so their stuck with what they got to use, as I am stuck with the evidence extent at the time to use on my behalf.

It needs some refinement, so it's not so wordy, but it kind gives you an idea what I'm trying to say. I still got to think about it a bit, may change my thinking in a few days who knows.

Rockhound <_<

p.s. Looks like I will have to go back to the University Library, re-read the pertinent laws: regulations; Rating shedule provisions page on my 1974 claim. They used USC 310 & 331 which is now USC 1111 I think. Presumption of Sound Condition.

Weatherman says it's going to be cold, possibly snow on Wednesday, when I usually go into town, will have to pick another day I guess.

Edited January 19, 2008 by Rockhound