Statement Of The Case ?

[Rockhound]

In going over my paperwork, for the umteenth time, I was reading the part in the Statement of the Case where they list the pertinent Laws, Regulations; Rating Schedule Provisions: After reading the requirement necessary to change a diagnosis, it came to me. Shouldn't they have listed the Law and/or Regulation that gave them the right to make the change in the diagnosis?

Here are two such Regulations that I feel should have been listed giving reason and basid to their decision, but they didn't. Least of which would have been the General Due Process Provisions under M21-1 which the basic right is that if any action proposed could result in denial, suspesion, reduction, or termination of benefits, you have certain basic right you may exercise before the proposed action is taken. In 1974, you had 30 days to submit evidence or request a hearing and had the right to representation such as a VSO. None of these things where given or made aware to me.

(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 30 days for the presentation of additional evidence to show that

service connection could be maintained. You will note that these are dated for when the claim

was submitted in 1973 and were in effect in 1974 when it was decided.

(2) 38 C.F.R. § 4.128 Change of Diagnosis (1973)

Rating boards encountering a change of diagnosis will exercise caution in the determination

in the determination as to whether a change in diagnosis represents no more than a

progression of an earlier diagnosis, an error in the prior diagnosis, or possibly a

disease entity independent of the service-connected psychiatric disorder.

How might this relate to a claim still open or a CUE claim?

Rockhound <_<

[Ricky]

Rock - I hate to continue to sound as though I am negative against your claim. Believe me my friend I am not and I really want to find a way to help you succeed.

The VA does what it has done in your case all the time. Although the military will diagnose a vet with a ratable mental disorder before release from active duty the VA will come along and diagnose the same vet with something such as a PD. In the true sense they have not changed the diagnosis. A change in diagnosis in its true sense is when the VA has made a diagnosis of a mental disorder, service connected it and then during a re-exam five years later decides that the mental disorder did not exist and then states that the vet has been and continues to suffer from PD instead of the mental disorder. Based upon this they attempt to sever your rating. This is a change in diagnosis.

What they have done in your case and thousands of others is diagnose you with PD and based your rating decision soley on that/their diagnosis. Once again they do this all the time.

The only effective way fight this is an independent medical examination/opinion, from either a private doc or your treating VA doc. In this opinion the doc will need to concentrate on fighting the VA diagnosis from the stand point that it should not have been diagnosed as PD based upon their findings and the DSM-IV.

We gotta find a way for you to get this IME and attack the VA diagnosis. Even if a private doc agreed with the VA doc a person can suffer from different mental health issues at the same time (although only one can be ratable). If that is the case then the private doc would have to focus on the fact that although he and the VA have determined that you have a PD, the service diagnosis of a xxxx mental disorder is also valid and the VA C&P doc should have found it also if he had followed the DSM. Along with this an argument for benefit of the doubt applies based upon aggravation.

Please remember, I truly want you to win this claim. All of this is just my opinion and I am trying to give you the best opinion that I can based upon my research. I think about your claim just about every night and try to find the best way for you to shove it down their throats for I do not like to see the stingy bas())((s simply turn their backs on a deserving veteran. I know this is eating you up and making your life miserable but try to keep a clear mind and always think win win, win cause you will win this blasted thing. Remember chin up, fire in your eyes and march forward for you are one of the toughest on the face of this earth, for you are a proud veteran who served his country without blinking an eye when you were called to do so.

Ricky

[Ricky]

Rock - Take a quick at the below or pull it up and read the whole decision. They specifically provide that a change of diagnosis is NOT a CUE:

Citation Nr: 0718982

Decision Date: 06/22/07 Archive Date: 07/03/07

DOCKET NO. 06-21 606A ) DATE

)

)

THE ISSUE

Whether the Board of Veterans' Appeals (Board) committed

clear and unmistakable error (CUE) in an October 23, 1986

decision denying service connection for a back disability.

REPRESENTATION

Moving party represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

P. Olson, Associate Counsel

FINDINGS OF FACT

1. The moving party in this case served on active duty from

December 1948 to August 1949 and from November 1949 to June

1955.

2. The moving party failed to adequately set forth the

alleged CUE, or errors, of fact or law in the October 1986

Board decision, the legal or factual basis for such

allegations, and why the result would have been manifestly

different but for the alleged error.

CONCLUSION OF LAW

Because the requirements for a motion for revision of a

decision based on clear and unmistakable error have not been

met, the motion must be dismissed without prejudice to

refiling. 38 C.F.R. § 20.1404(<_< (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

Initially, the Board notes that while it has considered the

possible application of the Veterans Claims Assistance Act

of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 &

Supp. 2005) (VCAA), the case of Livesay v. Principi, 15 Vet.

App. 165 (2001) held that the VCAA did not apply to motions

for CUE. Consequently, the Board finds that further

development is not warranted in this matter under the VCAA

or on any other basis.

II. Clear and Unmistakable Error

Rule 1403, which is found at 38 C.F.R. § 20.1403, relates to

what constitutes CUE and what does not, and provides as

follows:

(a) General. Clear and unmistakable error is a very

specific and rare kind of error. It is the kind of error, of

fact or of law, that when called to the attention of later

reviewers compels the conclusion, to which reasonable minds

could not differ, that the result would have been manifestly

different but for the error. Generally, either the correct

facts, as they were known at the time, were not before the

Board, or the statutory and regulatory provisions extant at

the time were incorrectly applied.

(B) Record to be reviewed. -- (1) General. Review for clear

and unmistakable error in a prior Board decision must be

based on the record and the law that existed when that

decision was made.

(2) Special rule for Board decisions issued on or after July

21, 1992. For a Board decision issued on or after July 21,

1992, the record that existed when that decision was made

includes relevant documents possessed by the Department of

Veterans Affairs not later than 90 days before such record

was transferred to the Board for review in reaching that

decision, provided that the documents could reasonably be

expected to be part of the record.

© Errors that constitute clear and unmistakable error. To

warrant revision of a Board decision on the grounds of clear

and unmistakable error, there must have been an error in the

Board's adjudication of the appeal which, had it not been

made, would have manifestly changed the outcome when it was

made. If it is not absolutely clear that a different result

would have ensued, the error complained of cannot be clear

and unmistakable.

(d) Examples of situations that are not clear and

unmistakable error. -- (1) Changed diagnosis. A new medical

diagnosis that "corrects" an earlier diagnosis considered

in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the

duty to assist.

[Ricky]

Here's another one:

Citation Nr: 0700732

Decision Date: 01/10/07 Archive Date: 01/24/07

DOCKET NO. 04-20 738 ) DATE

Examples of situations that are not clear and unmistakable

error: (1) Changed diagnosis. A new medical diagnosis that

"corrects" an earlier diagnosis considered in a Board

decision. (2) Duty to assist. The Secretary's failure to

fulfill the duty to assist. (3) Evaluation of evidence. A

disagreement as to how the facts were weighed or evaluated.

38 C.F.R. § 20.1403(d).

[Rockhound]

Ricky: You are not understanding my CUE claim. I am not saying the PD was a wrong diagnosis. I am saying that the va adjudicator did not follow the statuary, regulatory or law when he dicided it was a change in the original diagnosis. He failed to substantiate the change with clear and unmistakable evidence that the change was in order and that this evidence is missing from the record. That being were the examiner was to certify, backed by his own testing, examination, and observations, stating that the original diagnosis was erronious.

This is not a question of which diagnosis is a correct one, this is about Due process and not following the provisions set down for the va adjudicator.

38 CFR 3.105 (a)

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

including decisions of service connection,

This does not say that you have to already be SC with a diagnosis. The action for which my claim was predicated on was SC for my mental disorder. They denied me SC because they violated my Due process rights and other statutory and regulatory provisions when the adjudicator made a medical opinion, ( not in his authority to do) when he denied my claim, saying an alternative diagnosis had been made. He also failed to provide the certification, required by statutes, regulations, and laws, to back up his assertion , that such a change was proper in this case. Nor did he give me the required notice/time to provide evidence in my favor so that the claim for which my SC was predicated on could be maintained.

had it not been made, would have manifestly changed the outcome when it was

made. If it is not absolutely clear that a different result would have ensued, the

error complained of cannot be clear and unmistakable.

As far as I can see in my claim for CUE, I have but one stumbling block to get past and it is the one above. If I can adiquately explain, how had it not been for the error, it would have manifestly changed the outcome of my claim. When I mean stumbling block, I should say brick wall.

On Tuesday I am delivering my medical records to my Pyschiatrist at the VA Hospital. After this latest emotional break down, she has agreed to look at them. Whether she will help me with an IMO is another question yet to be answered. But she did answer my one nagging question when I asked her. did she think I had a personality disorder, and she enfatically said no. I'm cureous what she may have written down on her latest report of that visit, besides doubling my psych medication.

Man, if I only have one episode every six months, I'll stick with the lower dosage. Two days I walked around the house like a zomby. Now and then my mind would clear from the fog, so I could at least eat a bit and put a few thoughts together. So if I sound wierd or way out their, take it with a grain of salt and keep responding. The more of my questions are answered or get me thinking, the better I will understand everything about my claim, not just the CUE issue, but for my other claims as well.

Thanks Ricky, your imput is always welcomed as is everyone elses. Please don't be scared off becaues of my one sided view. After all, it is my claim and if I make a mistake, its not your fault that I did not follow the wisdom of others.

Rockhound <_<

Edited January 20, 2008 by Rockhound

[Berta]

A DUE Process or DTA error doesn't raise to the level of CUE.

If it did we would all

[Berta]

(I am having trouble posting here today)

one more try

A DUE Process or DTA error doesn't raise to the level of CUE.

If it did we would all be whipping out CUE claims-

A CUE involves a legal error-

they all(legal errors by VA) -in my opinion-

arise from initial due process problems- like did they even know how to read?

But the CUE regs are very specific and the CUE can often be manipulated into a legal error.

Sorry Attorney Bob Walsh and I could not get to CUE issues at SVR radio last week-

we are planning a future show to cover CUE claims-

He made a good point however- and we did cover them very briefly (Wed Jan 16th-soon to be in the Stardust archives-you can hear the show with any media player)

CUES take a lot of legal beagle reading, thinking, and lots of energy- even a well paid vet rep usually doesnt want to 'look' for a CUE in a past decision-

and none of them -even the good ones- have the time to devote to many CUE claims-

DONT be discouraged -by what I say-

I am more excited about my 2 CUE claims than my main AO claim-my AO claim gives me flashbacks of grief and Rod's death-

my CUES have lots of Legal evidence from established VA case law-

to support them.

The CUE should be stated in one-or two paragraphs-then

The legal evidence of the CUE should be worded like they are 10 years old and then supported by copies of VA case law and regs in effect at time of CUE.