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Another Question On My Cue Claim?


Guest Jim S.

Question

In my appeal of my very first claim, I had made a reference to the inadequicy of the C&P Exam, the VA Examiner had givien me. I did not specify any particular error that was made, but I did make a request for another C&P exam so that these deficeicies could be remedied.

Rather than conducting another C&P as I had requested, they ignored it completely and denied my claim on appeal. Not realizing I could take it any further, I let their decision stand, to my later regrets.

Mind you, I was a Corpsman in the Navy and had been stationed at a Drug rehab Center, and was quite aware as to what constituted an adequet pysch evaluation, not to mention, that I had spent three consequitive months on a psych ward, as a patient and had first hand knowledge of what and how a good psych evaluation was conducted.

Could this be used, say in a subsequet claim, should I loose this CUE claim, as a different approach to CUE?

Jim S. B)

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Jim- I have never seen a CUE solely on an inadequate comp exam-

however-if that exam produced the wrong diagnositic codes in the rating decision -that could be cued- if it would alter the outcome.

Marlow V Brown is good example-

My present SMC CUE is almost exactly like it.

Marlow filed a SC claim in 1948 which was granted but he was denied SMC.

In 1989 he realised that his severe SC disability picture and medical evidence warranted the SMC 1114 M award in 1948 and the disability was still continuous and at the M level.

He cued the 1948 decision-

This is from page 349 of the 2005 VBM-

I dont have the actual case yet-

He was granted 41 years retro SMC-

(I believe he died before he received the check) not much info yet-

my point is-

Marlow might well have gotten a faulty C & P-nothing in the 1948 decision prompted consideration for SMC-

he might have cued on wrong diagnostic codes-as were part of my CUE claim.

The medical evidence, however, reflected a bonafide CUE had been committed in MArlow's case.

Medical evidence that VA had at time of both of my alledged CUEs also warranted an SMC award.

The VA put the wrong diagnostic codes on a 1997 rating decision and also failed to

consider a General Counsel Opinion that also warranted SMC in my case-

It can be an erroneous diagnostic code that is a potential basis for CUE claim that could have been produced from a faulty VA exam.

If that was the case in your situation-

and the medical evidence at that time clearly supported a different Diagnostic code that would have altered the outcome-

to me this would be a CUE claim.

These are two examples of what I ean as a challenge to the Diagnostic code- which puts the CUE into VA's legal criteria under 38 CFR. there are more at the BVA if you search under CUE diagnostic code

http://www.va.gov/vetapp05/files2/0507854.txt

(March 2005 decision awarded partial CUE claim back to 1947)

http://www.va.gov/vetapp04/files4/0433908.txt (---on Remand - 2004 CUE on 1966 decision)

Vets have to look up their diagnostic codes on rating decisions because the code itself could warrant more then they are getting.

It doesn't happen too often but,in my case, a posthumous award was clearly erroneous as to the way my husband's disabilities were coded -100% SC and 100% Section 1151= SMC.

Also I need them to fix this as it impinges on my claim under Nehmer-

Once that succeeds- and it seems a decision is coming very soon on that-

the VA then has to award SMC under Nehmer too-

In 1997 my new vet rep and I never questioned this part of my Sec 1151 award letter at all---

I thought perhaps the regs prohibited 1151s from SMC consideration-

but they don't-and VA gave no valid reason for the denial of SMC.

(of course they sure hoped I never looked into the regs either to find out they were wrong)

A vet is much better off Nodding diagnostic code errors right away-if they see the errors.

But a CUE is one more way- in many cases- to rectify these errors-

if more compensation is actually involved ( a manifestly different outcome).

Edited by Berta
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Berta: My biggest hurdle I see in my claim is proving that the condition that I want recognized, was and is a chronic condition. Since the C&P exam was deficient in answering this very important question. The only note in the examiners report that even mentions the condition, reads as follows.

"on the basis of the history it would be difficult to substantiate a solid diagnosis of schizophrenia.

The Navy gave this condition the diagnositic code, "(DNEPTE)[(DC) 2954 with the VA code of (VA) 9205)"

The evidence, I believe at the time, supported the Navy's opinion and was completely ignored, on the benefit of the doubt rule, but the VARO applied an alternative diagnosis of a "Personality Disorder" which is not supported by the VA examiner's report, and making a medical assumption that an alternative diagnosis was made, thus making a medical judgement they had no right to do.

Since the C&P exam was defective. the chronic nature of my original condition and/or evidence of other related conditions were ignored and hampered in subsequet appeals and claims, since they would never consider any new and material evidence of the original diagnosis, since it was not new or material to support a personality disorder as service connected.

I don't know if this makes any since, I'm having a bit of a problem concentrating right now, between my odd assortments of meds added to those I am now taking for my Flu like syptoms, I'm a bit grogey at the moment,

It boils down to the VARO screwed up, the claim got screwed up because of it, and now I have to streighten it all out, when my mind is screwed up once again.

Jim S. B)

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"on the basis of the history it would be difficult to substantiate a solid diagnosis of schizophrenia.

Jim- if you have been diagnosed and treated since with chronic schizophrenia- I see this statement -although it is weak- as a potential basis for the CUE-

but without a current diagnosis and treatment of schizophrenia- I do not see how VA would consider this a CUE.

This is why I found Terry's CUE to have legal merit-

the chronic nature of his diagnosed SC schizophrenia cannot be removed from the medical picture he presented in service and within one year after his service.

The BVA could have easily stated a similiar finding to yours -in Terry's case-years ago-

however, his VA diagnosis of subsequently service connected chronic schizophrenia and hospitalizations- as evidence- is so strong that it does not allow for any conjecture as to whatever the military had diagnosed him with,or even to give any credence to any other diagnosis- except for schizophrenia.

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My biggest hurdle I see in my claim is proving that the condition that I want recognized, was and is a chronic condition.

Jim,

I'm not sure this will help, but I found this when I was trying to establish chronicity of one of my husband's conditions. I can't remember where I found this, I had it cut and pasted in one of my files. But if it is helpful, I'm sure I can locate the source.

(3) Chronicity. The claimed illness must be chronic. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. Disabilities which are subject to intermittent episodes of improvement and worsening within a 6-month period would be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

2. Illness Not Chronic. The fact that a claimed disability is not found on last VA examination does not necessarily preclude entitlement under 38 CFR 3.317. The requirement for chronicity is fulfilled if the disability has persisted for at least 6 months. Disabilities subject to episodic improvement and worsening within a 6-month period are considered chronic. If the disability does not meet the 6-month requirement, include the following statement under “Reasons for Decision”: "The disability must have persisted for a period of at least 6 months. Service connection for _____ is denied since this disability was first manifested on _____ and lasted less than 6 months."

Carrie

Edited by Morgan
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Guest fla_viking

Dear Fellow Veterans & Friends.

The court ruled an inadiquite C&P exam does not constitute a CUE. The court found that even though the examination was bad and caused the vet to be delayed his compensation. The court ruled it could not grant CUE in every error the VA makes in ruling on our claims.

I think the court punked out on this ruling. They see all the VA errrors made and expect the vet to eat those errors and suffer years of poverty at the dilbert mistakes the VA makes.

Terry Higgins

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yep- they consider the C & P to be part of the overall Duty to Assist criteria- and Duty to Assist violation cannot be basis for a CUE-

I think that would be acceptable if they used real doctors to perform the C & Ps-

real doctors not employed by VA or any contractual arrangement with VA-

just let the vet chose any private doc , give them copy of the blank C & P exam, and then send VA the bill-

Terry you said this before and you are so RIGHT-

it is technically a bonafide conflict of interest to have a VA doctor state anything that could deny a VA claim-

but without the benefit of the same rights one would have in a civil court of law-

this ties a veteran's hands behind their back right from the git go-

what I mean is- when they developed the AO settlement fund -from a Class Action-

they sure didnt let Dow Chemical to control the decisions made on each veteran's application for the AO settlement award.

PS-all- I think- if you are getting an IMO it is a great idea to give the IMO doc the blank C & P specific to your claim and certainly copies of any VA C & P results you might already have.

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