Research Help Needed, Veteran Court Decisions

[Rockhound]

I'm not very good a researching Veteran Court cases. My powers of concentration are as bad as a major case of AADD, probably due to the effects of the psychoactive drugs I need to take.

I need your help in researching court cases in which a change in the Veterans original diagnosis was found to be improperly done.

Finding that the Physician failed to support such a change by not showing the proper certification that the original diagnosis was clearly and unmistakenly in error and/or that his current findings, opinion and/or diagnosis was a correction of the original one.

I have found only a couple of cases, although on point, they are in favor of the VA. I could use these as examples,to show the procedures, regulation, and Law behind this cetification rule, but I would rather find a case which was in favor of the Veteran.

Any help would be appreciated, even if the case supported the VA. I have tried to find a president opinion, but their too, I am coming up empty.

Rockhound Rider

Edited May 30, 2008 by Rockhound

[carlie]

Rock,

I have also been researching this for you. Just about all the decisions I

have found dealing with this, only relate to Reduction or Discontinuance

of a prior decision.

I'll keep you in mind.

carlie

[Berta]

Yes-like Carlie that is all I found too- but:

This is in part a CAVC decision:

No. 00-1376

Leonita J. Coakley, Appellant,

v.

Anthony J. Principi,

"Rating agencies will

handle cases affected by change of medical findings or diagnosis, so

as to produce the greatest degree of stability of disability

evaluations consistent with the laws and [VA] regulations governing

disability compensation and pension. It is essential that the entire

record of examinations and the medical-industrial history be reviewed

to ascertain whether the recent examination is full and complete,

including all special examinations indicated as a result of general

examination and the entire case history. . . . Examinations less

full and complete than those on which payments were authorized or

continued will not be used as a basis of reduction. . . . Moreover,

though material improvement in the physical or mental condition is

clearly reflected the rating agency will consider whether the

evidence makes it reasonably certain that the improvement will be

maintained under the ordinary conditions of life. . . . Rating

boards encountering a change of diagnosis will exercise caution in

the determination as to whether a change in diagnosis represents no

more than a progression of an earlier diagnosis, an error in prior

diagnosis or possibly a disease entity independent of the service-

connected disability.

"Subsection © of 38 C.F.R. 3.344 limits the application of

subsection (a) to 'ratings which have continued for long periods at the

same level (5 years or more).' Such disabilities are considered

'stabilized', and the regulation thus requires a high degree of accuracy

in decisions reducing those ratings." Schafrath v. Derwinski, 1 Vet

App. 589, 594 (1991) citing 38 C.F.R. 3.344 ©.

The Board, in its decisions, is statutorily required to provide "a

written statement of [its] findings and conclusions, and the reasons or

bases for those findings and conclusions, on all material issues of fact

and law presented on the record." 38 U.S.C. 7104(d)(1). The statement

must be sufficient to permit an appellant to understand the basis for the

Board's decision, as well as to facilitate review in this Court. See, e.g

., Buckley v. West, 12 Vet.App. 76, 84 (1998); Allday v. Brown, 7 Vet.

App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).

The Board must analyze the credibility and probative value of the evidence,

account for the evidence it finds persuasive or unpersuasive, and provide

the reasons for its rejection of any material evidence favorable to the

veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).

In this case 38 C.F.R. 3.344(a) applies because the appellant's

20% rating for cervical spine arthritis was in effect from April 29, 1993,

to September 22, 1998, which is more than five years. R. at 672-675, 750-

54. In the March 22, 2000, decision here on appeal, the Board correctly

framed the issue as a rating-reduction claim, rather than an increased-

rating claim, and stated the requirements of 38 C.F.R. 3.344(a).

However, the Board failed to determine whether the improvement in the

appellant's condition was reasonably certain to be maintained under the

ordinary conditions of life. See 38 C.F.R. 3.344(a); Brown (Kevin), 5

Vet.App. at 420. In a rating reduction case, not only must the Board

determine that the veteran's disability has actually improved, but that

the improvement reflects an increased ability in the veteran to function.

See Brown (Kevin), 5 Vet.App. at 421; see also Faust v. West, 13 Vet.

App. 342, 349 (2000). When the rating has been in effect for five years

or more, VA regulations specifically require that, "though material

improvement in the physical or mental condition is clearly reflected the

rating agency will consider whether the evidence makes it reasonably

certain that the improvement will be maintained under the ordinary

conditions of life." 38 C.F.R. 3.444(a) (emphasis added).

The Board reviewed the entire medical history of the appellant's

cervical spine examinations including the findings of the September 1998

examination which reflected material improvement in the appellant's

condition. R. at 9-12. The Board stated: "There was improved range of

motion of the cervical spine, and it was noted that motion was 80 percent

of normal . . . X-rays of the cervical spine in September 1998 were

considered to be within normal limits. The examiner noted that there was

no evidence of weakness, pain, or functional loss due to pain." R. at 12

. However, the Board did not determine whether this improvement was

reasonably certain to continue given the ordinary conditions of the

appellant's life. The VA doctor who conducted the September 1998

examination

specifically stated that, "any additional limits on her functional

ability due to repeated use or during flare-ups are probably on a

functional basis and not related to any objective impairment." R. at 743.

The September 1998 examination did not determine whether the appellant's

daily activities would lead to repeated use or "flare-ups" that would

cause an impairment in her ability to function, and the Board failed to

address this issue as well.

Although the appellant asks the Court to reverse the Board's

determination that a rating reduction for her cervical spine arthritis was

proper, reversal is the appropriate remedy only when "[t]here is

absolutely no plausible basis" for the BVA's decision and where that

decision "is clearly erroneous in light of the uncontroverted evidence

in appellant's favor." Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992

). "Where the Board has incorrectly applied the law, failed to provide an

adequate statement of reasons or bases for its determinations, or where

the record is otherwise inadequate, a remand is the appropriate remedy."

Tucker v. West, 11 Vet.App. 369, 374 ( 1998); see generally Hicks v.

Brown, 8 Vet.App. 417, 422 (1995). The statement of reasons or bases

supporting the Board's decision to affirm the rating reduction for the

appellant's cervical spine arthritis is inadequate because it does not

address the issue of whether the appellant's improved condition is "

reasonably certain to be maintained under the ordinary conditions of life"

as required by 38 C.F.R. 3.44(a). Accordingly, a remand of this

matter is the appropriate remedy for the Board to reconsider, properly

adjudicate, and explain the rating reduction for the appellant's cervical

spine arthritis.

C. Back Condition

The appellant asserts that her unadjudicated claim for a back

condition should be remanded to the Board for adjudication. Appellant's

Br. at 15. Appellate review of a decision by an agency of original

jurisdiction (AOJ), usually the RO, is initiated by the claimant's

filing of a timely NOD with the AOJ and, following the issuance of an

SOC, is perfected by the claimant's filing of a Substantive Appeal with

the AOJ. 38 C.F.R. 20.200 (2002); see also 38 U.S.C. 7105;

Brannon v. West, 12 Vet.App. 32, 34 (1998); Roy v. Brown, 5 Vet.App.

554, 555 (1993); Rowell v. Principi, 4 Vet.App. 9, 14-15 (1993).

The Substantive Appeal in a case must be filed within one year after

mailing of notification of an adverse AOJ decision or within sixty days

after the AOJ mails an SOC, whichever period ends later. See 38 U.S.C.

7105 ((1), (d)(3); 38 C.F.R. 20.302(:) (2002). VA regulations

require that the AOJ issue an SSOC "when additional pertinent evidence

is received" after an SOC has been issued. 38 C.F.R. 19.31 (2002).

If a claimant submits additional evidence within one year

of the date of notification of the decision being appealed and that

evidence requires the issuance of an SSOC pursuant to 38 C.F.R. 19.

31, then the claimant is entitled to no less than 60 days from the mailing

of the SSOC to file a Substantive Appeal. 38 C.F.R. 20.302(2) (2002

).

In this case, the appellant filed her original claim for a back

condition in July 1986, and it was denied in January 1987. R. at 227, 245

. The RO declined to reopen the appellant's claim for a back condition in

April 1993, on the basis that the appellant had not submitted any new and

material evidence to establish service connection for a back condition.

Suppl. R. at 23-24. The appellant filed a timely NOD, and the RO issued

an SOC on May 27, 1993. R. at 395-98; Suppl. R. at 28-33. On May 21,

1993, seven days before the SOC was issued, the RO sent the appellant a

letter stating that it did not have her SMRs from her second period of

active duty and requested that she submit them. R. at 401. The appellant

submitted the SMRs from her second period of active duty in June 1993,

which was within the one year time period from the date of notification of

the RO decision. See R. at 435, 589. If the appellant's SMRs from her

second period of active duty were pertinent to her claim for a back

condition, the VA was required to issue an SSOC and the appellant was

entitled to no less than 60 days from the mailing of the SSOC to file a

Substantive Appeal. See 38 C.F.R. 19.31; 20.302(2). Accordingly, the

Board was required to address the matter or remand it for adjudication, if

appropriate. Since the Board did not do so, a remand is required.

D. Psychiatric Disorder

The appellant argues that the Board erred by failing to address her

claim for secondary service connection for a psychiatric disorder which

she claims is related to her service-connected migraine headaches.

Appellant's Br. at 18. The appellant raised the issue of secondary

service connection for a psychiatric disorder caused by her service-

connected migraine headaches after the RO declined to reopen her claim for

direct service connection for a psychiatric disorder in February 1994. R.

at 589- 92. The appellant's assertion of secondary service connection for

a psychiatric disorder appears in both her April 1994 NOD and her August

1994 Substantive Appeal. R. at 604, 630. The RO did not address the

appellant's claim for secondary service connection for a psychiatric

disorder in the May 1994 SOC, and the Board determined that "[t]he lay

statements by and on the appellant's behalf" that the appellant's

psychiatric disorder is related to her migraine headaches, "cannot serve

as a predicate to reopen the claim." R. at 8, 621.

The Board found that lay assertions of medical causation absent

competent medical evidence are not sufficient to meet the "new and

material evidence" burden imposed by 38 U.S.C. 5108 to reopen a

veteran's claim. However, in this case there is competent medical

evidence of record that the appellant's psychiatric disability is caused

by her service-connected migraine headaches, including such findings in VA

treatment records. R. at 374, 377, and 385. Because the appellant filed

an NOD with regard to the issue of entitlement to secondary service

connection for a psychiatric disorder, and there was competent medical

evidence of record supporting this claim, the Board was required to

address the matter or remand it for adjudication, if appropriate. See

Buckley v. West, 12 Vet. App. 76, 82 (1998); Isenbart v. Brown, 7 Vet.

App. 537, 540-541 (1995); Suttman v. Brown, 5 Vet. App. 127, 132 (1993)

. Since the Board did not do so, a remand is required.

E. Extraschedular Consideration for Migraine Headaches

The appellant asserts that the Board was required to determine

whether an extraschedular rating analysis was appropriate for her

service-connected migraine headaches. Appellant's Br. at 19. A claimant

may be entitled to an extraschedular rating in exceptional cases of

unusual disability or marked interference with employment. 38 C.F.R.

3.321(:)(1) (2001). The appellant did not raise the argument of

entitlement to an extraschedular rating for her service-connected

migraine headaches to the Board. The Federal Circuit has held that

although this Court "may hear legal arguments raised for the first time

with regard to a claim that is properly before the [C]ourt, it is not

compelled to do so in every instance." Maggitt v. West, 202 F.3d 1370,

1377 (Fed. Cir. 2000). Moreover, the ROA reflects that the appellant

withdrew her appeal of entitlement to an extraschedular rating after she

was notified of the rating increase from 30% to 50% for her migraine

headaches. R. at 703, 705, and 707. Once the appellant communicated to

the RO, by phone, that she wished to withdraw her appeal, the RO informed

her that without a written statement of withdrawal, her withdrawal was

only effective for those claims receiving the "highest evaluation possible

under the applicable diagnostic code." Id. The 50% rating for her

migraine headaches was the highest evaluation possible for that claim

under the applicable diagnostic code. 38 C.F.R. 4.124(a), Diagnostic

Code (DC) 8100 (1997); R. at 697. Therefore, the appellant effectively

withdrew her appeal for an extraschedular rating for her migraine

headaches, even though she did not submit a written statement of

withdrawal. Additionally, we could not hold that the Board's failure to

consider an extraschedular rating was erroneous because such ratings are

warranted only in exceptional or unusual circumstances, such as marked " Etc

---------------------------------

I cant find anything as specific as what you need-

BUT the Diagnostic code was wrong in your past decision- as I understand it- and the actual diagnostic code (based on documented medical evidence of proper diagnosis) is what would give you a retro award under a CUE award-

I dont see this as a complex issue.

Bentley V Derwinski-

The veteran clearly proved with medical evidence that the DC he was given in a 1960 final decision was erroneous.

This case involved a reduction to 40 but still the court found the DC was erroneous in 1960.

Myler V Derwinski- I posted this case here before-

A final 1953 decision was found by the court to be erroneous because the proper percentage rating used for the Diagnostic code was wrong.

Myler was assessed by NVLSP as a "failure to assign a disability rating that was required by the clear and undisputed evidence of record."

You received the wrong DC and therefore the wrong rating as I understand it-

I feel all you need to do is identify the wrong diagnostic code, make sure you send them copy of the rating decision, and then

state that your proper diagnostic code at that time was ----, attach the relevant documented medical evidence you have to support the actual correct diagnostic code,and then state that the outcome of the prior denial was manifestly altered by VA's failure to award you service connection due to their clear and unmistakable assignment of the wrong diagostic code in the final decision.

There is considerable info here at hadit on CUE claims-

many were CUES because the VA proposed reductions-others have different factors involved.

I needed one sole document to award a CUE I had many years ago.

The VARO had and the BVA had it-apparently they didnt read it.

The Regional counsel read it some years ago and awarded the CUE-

My present Cues are not complex ether-I used OGC pres ops and BVA decision for them but the regulations that warrant the CUE award and the decision themselves were all I really needed to send them.

Since their initial denial was based on a ridiculous and untrue statement-(as the C file reveals) I pounced on that right away-

they failed to give proper diagnostic codes as well as failed to even give ANY DC at all on one of my husband's catastrophic disabilities under 1151,and failed to award SMC.

That is a CUE.

I only researched similiar cases to add how the BVA interpreted the same type of CUEs.

The OGC pres ops and also the regs I sent them support that they made legal errors in a past decision.

The medical evidence has to be established to award a CUE like yours.

My husband had a CVA under 1151 which had to be rated at 100%

His 1151 CAD disease had to be rated at 100%.

this was established by medical evidence-ironically only weeks before the first decision came.

By the time my second award came this still had not been corrected.

Medical evidence and service connection (to include 1151 awards)has to be already established to support a wrong DC code and rating under CUE.

interference with employment or frequent periods of hospitalization as to

render impractical the application of the

regular schedular standards, which, on the record, the appellant has

not presented. 38 C.F.R. 3.321(:). Accordingly, the Board had no

obligation to address the appellant's entitlement to an extraschedular

rating for her migraine headaches.

[Rockhound]

Berta: as to the VARO applying the wrong diagnositic code, how am I to find the code for the particular personality disorder that they used in denying my claim?

The diagnosis or opinion made by the VA C&P Examiner was an "Inadequate Personality associated with inadequate educational experience."

The date of this diagnosis or opinion was March 1974. DSM I and the dianostic codes used by the US Navy Medical Board were ,ICDA disgnostic codes which were then tranlated to VA diagnostic codes. There appears not to be any diagnostic code given for the personality disorder, neither by the VA C&P Examiner nor the VA in their decision. They only used the diagnosis as stated above.

I will add, that nothing in the VA C&P Examiner's report states, sudjest,or implies that his current diagnosis and/or findings was a correction of the original diagnosis, nor when commenting on the original diagnosis, did he state and/or imply, that it was an erronious diagnosis.

So I ask again, how do I look up the DC for a personality, inadequate type, associated with inadequate educational experience? March 1974 circa.

Rockhound Rider

[Berta]

I dont know how to find that diagnostic code -

the important diagnosis- is what compensable disability did they diagnosis you with in or after you left the military- as this claim has risen from an inservice medical event.

I have posted CUES here on this - and we have a member Terry Higgins who had similiar case-

Your SMRs and your discharge certificate should show what the proper diagnosis was or any subsequent diagnosis you got after service that is a compensable disability.

Or if the diagnosis was wrong at that time-you need medical evidence to prove the correct diagnosis.

[Rockhound]

Berta: you wrote, (Or if the diagnosis was wrong at that time-you need medical evidence to prove the correct diagnosis.)

If it is a CUE claim, then don't I have to use the evidence that was present at the time of CUE?

The medical evidence that shows the diagnosis of Acute Schizophrenic epiisode, in remission, Navy diagnostic code 2954 which relates to VA diagnostic code of 9205 was the diagnosis that the VA claims adjudicator stated in his summery decision of my claim, with his unsuported decision, that this diagnosis was alternatively diagnosed as a personality disorder.

I can not claim at this time that I am schizophrenic or even have schizophrenia, although I have been plagued by schizophrenic idealation type thoughts and I am currently taking medication that keep these thoughts from intruding on me.

The report by the VA C&P Examiner is the only evidence I have that supports my position that the VA Claims Adjudicator made a medical conclusion that is unsuported by this same report.

The CERTIFICATION that the present diagnosis of the personality disorder is missing from this examiners report. He neither stated or implied that his diagnosis was an alternative diagnosis, nor did he state that the original diagnosis was erronious and his was the correct diagnosis for which SC should be decided upon.

The evidence since the time of the original claim only helps to support the residual effects of the Acute Schizophrenic episode event. The event was so traumatic, even though no lives were lost, it could have very well have ended differently. It left an ever present fear in me that haunts me today. With age and seperate illnesses unrelated, I have come to develop a chronic adjustment disorder, with major and chronic depression with anxiety. This is the same condition that the Navy Dr.s and Psychiatrists conluded were probably permanent conditions that I would suffer as a result of the psychotic episode.

My medical history, although not much is shown, I have had continual problems with adjustment and depression supported by my work history, inability to settle down, three unsuccessful marriages with no children, and very limited medical evidence, but their is some to highly suggest of a continual problem with adjustmet and periods of depression.

I don't know what else to say, the evidence is their, although their is little of it. The fear of being locked up as before kept me from getting help early on and now all I have and can afford it the treatment I get from the VA Health System.

Fear deep inside me is the governing factor, with the help of medication I take, Keeps me from loosing it once again, but the effect of it has left me incapeable of a normal like, which is the reason I suppose I have the adjustment disorder with depression and anxiety.

IMO asside, as long as I am being treated by the VA and my financial resources remain as they are, it is unlikely I will be able to show a nexus to then and now, even if I am able to prove my CUE claim.

Sorry Berta, ranting again. I get so worked up, when I discuss or work on my claim, even as incignificant as my only SC claim of a Nasal fracture claim seams to be, compaired to the pychotic episode, I have a difficult time keeping my emotions in check. Maybe if I win this small part of my overall claim, which I have and for which I am presenting seperate from my possible CUE claim. Holding off with the CUE claim until their is a decision on my SC nasal fracture It will give me the strength and fortitude to carry on with the rest of my Claims that the VA found not to be SC'd.

Can't seem to stop, so I'll stop here.

Rockhound Rider

Edited May 31, 2008 by Rockhound

[Ricky]

Rockhound just trying to understand your contentions:

You have provided that "The medical evidence that shows the diagnosis of Acute Schizophrenic epiisode, in remission, Navy diagnostic code 2954 which relates to VA diagnostic code of 9205 was the diagnosis that the VA claims adjudicator stated in his summery decision of my claim, with his unsuported decision, that this diagnosis was alternatively diagnosed as a personality disorder."

I remember reading another post in which you provided that the doc had concluded that at the time of the exam he saw PD. If this is true then this is why the VA came to the conclusion that it did.

From reviewing all of your post (I hope I did not miss any)I still cannot see how you will be successful on a CUE.

From what I have read, the military released you from active duty due to a " Acute Schizophrenic epiisode" which all knows more often than is a direct result of schizophrenia.

After release from duty you file a claim for VA compensation. During the C&P exam the doc provided that he did not presently see the schizophrenia, however, he did presently see a personality disorder. Based upon this report the VA rater denied your claim due to the diagnosis of personality disorder.

As a result of this you now contend CUE based upon the fact of a changed diagnosis either by the doc or the VA rater (I'm not sure which).

Based upon the above I really do not see a CUE. However, I must ask that at the time of the denial or anytime since then has a doctor diagnosed you with schizophrenia? If not then it is going to be impossible to prove CUE for at the time of the exam or shortly after the denial you would have to had a current diagnosis which also provided a nexus to your inservice medical condition.

You have contented in this post that the VA rater " stated in his summery decision of my claim, with his unsuported decision, that this diagnosis was alternatively diagnosed as a personality disorder." The C&P doctor gave him the medical support that he needed to deny the claim based upon a personality disorder (he did not presently see the schizophrenia, however, he did presently see a personality disorder).

Based upon all of this - the doc did not change the diagnosis of the military, he simply stated that he did not presently see it; the VA rater denied the claim due to a diagnosis of PD as the doc stated that at the time of the exam he did see a PD present so what are you basing your contention of CUE on?

I really would like to see you win this thing but what you have presented will not do it. Since you have waited so long you are going to have to have a doc diagnose you with schizophrenia and provide one hell of a rational to it being present at the time of the C&P along with the fact that the doc doing the C&P was a looney tune for diagnosing PD. Just my humble opinion. If I am misunderstanding your situation or contentions please let me know. Would it be possible for you to post the military provided reason for discharge (diagnosis), the results of the C&P exam and a the VA denial? This would go a long way in clearing up your situation. Thanks