Continuing Thread On My Cue Claim

[Rockhound]

Sorry ahead of time, this is a bit long.

Dated March, 27 1974

Statement of the Case

Pertinent Laws; Regulations; Rating Schedule Provisons:

(38 USC 310, 331) circa: 1974. Service connection may be granted for disability resulting from disease or injury incurred or aggravated by service.

(38 C.F.R. 3.303) circa: 1974. Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation.

(38 C.F.R. 3.102) circa 1974. When reasonable doubt arises regarding service origin, the degree of disability, or any other part, such doubt will be resolved in favor of the claimant. A reasonable doubt means a substantial doubt and one within the range of probability as distinguished from speculation or remote possibility.

(side note) It must be noted that the above references are only in part, you must read them in their entirety in order to understand their proper applicability and use) This side is from me, not the VA and not a part of the Statement of the Case.

Decision:

Service connection for concussion and nervous disorder is not assignable.

Reason for Decision:

Although Mr. XXXXXX sustained a concussion while on active duty, the latest VA examination is negative for residual disability. Accordingly , there is no disease or injury incurred in or aggravated by military service to which a grant of service connection could attach. Available records which form a portion or Mr. XXXXXX C File indicate a pattern of disability first thought to stem from a psychosis and later found to stem, instead, from a personality disorder. As the latter is a condition congenital and developmental in nature for which disability compensation benefits are not payable, service connection must be withheld. We regret that the evidence now on file does not permit a more favorable determination. We will continue to review any later furnished evidence that is pertinent to the matters under discussion.

(Me again) The statement in the Reason for Decision really gets to me and it is hard sometimes to get past it and look at thing in an impersonal and objective manner. Which I am not a very good judge to say whether I am or not.

I'll try to take these in order and give you my reasoning why the reasons stated above are not only wrong, but very misleading.

I. Concussion , although sustained while on active duty, the latest VA examination is negative for residual disability.

A. EEG tracing showed an adnormal slow wave pattern of the frontal lobe of the brain and remained the same after two subsequent tests, even after being off medication for a period, the EEG tracing showing slow wave pattern was still abnormal and was attributable to the concussion I incurred when I fell a broke my Nasal Bone, while a patient for the same psychotic episode, the fracture nasal bone being the only disease or injury for which I was SC and it was only at 0%..

1. To this date, their has never been a repeat EEG test, to confirm that the slow wave form tracings of the frontal lobe of the brain, has resolved back to normal or its continuing effects on me, the Veteran.

2. Since their was a known Concussion, a verifiable injury to the frontal lobe of the brain, evidenced by the SC fractured nasal bone, which is the area of the brain where ones personality develops from, why then was this not explored further, to see what or if it was the cause or reason for the PD diagnosis as per (38 C.F.R. 4.128, Change of Diagnosis) circa: 1974.

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 a prior diagnosis, or possibly a disease entity independent of the service connected psychiatric disorder. (in total)

II. Available records which form a portion of Mr. XXXXXX C File indicate a pattern of disability first thought to stem from a psychosis and later found to stem, instead, from a personality disorder.

A. The only evidence I have been able to find in my C File, to date even, except the VA C&P Examiner's summery report, are my own statements as to my history prior to service, which I am sure they twisted to their advantage. But then I thought such evidence, unless supported by concurrent evidence can not be used, but then again, I have been wrong before.

1. Taking the examiner's summery report. As I have spoken of many times, using the exact statement and witting, the examiner only stated "At this time my preferred diagnosis would be that of a personality disorder, inadequate type associated with an inadequate educational experience. No. psychosis is present and that on the basis of the history, he could not fully support the diagnosis of Schizophrenia, He is competent to hand his own affairs at this time.

(me again) I am trying hard to look at the examiner's report in an impersonal and objective manner, but for the life of me I have yet to see anything that says, states, insinuates, or other wise supports the Rater's statement that my psychosis, the proper diagnosis being at the time, Acute Schizophrenic Episode, in remission, stemmed from a PD. This appears to me, at least, a complete fabrication and misstatement of the facts and evidence, extent at that time. Restating it as a nervous disorder, is even a mischaracterization of the original diagnosis and the events that led up to my being hospitalized, on a psychiatric ward for three months. (see 38 C.F.R. 4.127) circa: 1974. Mental Deficiency and Personality Disorders

Mental deficiency and personality disorders will not be considered as disabilities under the terms of the schedule. Attention is directed to the outline of personality disorders in the APA manual, Page 34, et seq. Formal psychometric tests are essential in the diagnosis of mental deficiency, brief emotional out-bursts or periods of confusion are not unusual in mental deficiency or personality disorders and are not acceptance as the basis for a diagnosis of psychotic reactions developing after enlistment, i.e., mental deficiency with psychotic reactions or personality disorders with psychotic reaction, are to be considered as disabilities analogous to and ratable as schizophrenic reaction, unless otherwise diagnosed.

If there was an error in the original diagnosis, where is the supporting statement that clearly and unmistakably shows this? Assumptions are not facts, making statement not in evidence are not proof. A mere diagnosis of a PD, while there is an existing diagnosis of a psychiatric one, although not fully supported by a VA C&P Examiner, yet supported by a conference of Psychiatrists of the US Navy Medical Board, is not sufficient to constitute error in the minds of others, that they would not differ in their opinion, that their was in fact, error in the original diagnosis.

I'm tired, but most of all, I am angry. Angry that there are those who say, their was error or CUE and then there are those who say, there is no error or CUE. My consensus is that since there is no agreement, there must then be error or CUE in the original claim. Right or wrong, that is how I reason it in my mind and that is not debatable.

The problem, as I see it, is not what the error or CUE was, but how to write it, to support it properly, so that it has meaning, weight, and is sufficiently evidenced, so that it will prevail.

I have Cognitive problems that I have finally been able to substantiate, at least to myself and one neuropsych examiner, so writing this in a meaningful and understandable way is difficult at best. Maybe I am just venting and trying to understand all this, and it will be all I get from it, however I do not think so. Maybe my NSC adjustment disorder is so ingrained in my personality now, that I will never accept anything less, than showing that the VARO committed reversible error, in their original decision, which denied my claim for a psychiatric disorder, its residuals, and for residuals of a TBI/concussion.

Finally the question that bothers me the most, why is their no discussion by the Rater and/or C&P Examiner as to the other two parts of (38 C.F.R. 4.128) other than error and secondly where are the formal psychometric tests to support the C&P examiners own assertion and opinion of the PD diagnosis? The Rater cannot use the psychometric tests results from one Dr. saying one thing and use those same test results to say another without showing his rational (reason and basis) why the other opinion is in error and then of course it must show that it was clearly and unmistakably in error, in order for his opposing opinion to be used as the correct one and in order to have a change in a prior diagnosis be valid.

Like I have said, this is tiring and now my head is beginning to ache, so I will leave you to ponder what I have said and look forward to comments, suggestions, or support. Anyone, with the exception of the support, I may not and probably won't agree upon, but don't let that keep your from posting. Please.

Rockhound Rider

Edited July 15, 2008 by Rockhound (see edit history)

[huskerfanfl]

I am not sure what answer you are looking for. Personally I do not think you have a CUE, but by all means pursue it. What you wrote in the post is probably sufficient. You tell what you think the error was and why.

[john999]

Rock

You could file your CUE claim ,and then if it is denied then get a lawyer to look at it and see if there is some way he can phrase it to support a CUE. As you have said it is all in the way the advocate or vet sets forth the claim for CUE. I filed for CUE and was denied. I then filed an NOD, and hired a lawyer to look it over and see what he thought. That costs nothing. If there is a CUE and there is possibility of big retro you might have the lawyer do the CUE for you because any wrong wording, and your claim dies at the BVA. A denial at the VARO is not as important as getting it right for the BVA or the Court. Many of these things go to the BVA or Court with fatal flaws in the logic or facts. What my lawyer told me is that the first thing the VA has to admit to is a CUE. Then they have to re-evaluate the claim based on the admission that there was a CUE. If the VA found an error and then found that your had acute schizophrenia in remission without residuals you might only get 0% up to the present. You need to show schizophrenia in partial remission with residuals to get some money beyond the minimum. I only got 10% for residual schizophrenia back in the day. However, if you even got 0% that would open the door for an increase if you can get a current diagnosis of schizophrenia. I would just do the best I could with the CUE and file it at the VARO where the error occurred. When it gets denied, like 99% do, get a lawyer to look at it and go from there. I am telling you how I have done it so far. I think I have a good case since there was evidence that the VA did not consider in my decision. My lawyer did not argue that I should have gotten a higher rating based on the evidence since that would be judgement call only that the evidence was not considered at all. It would be the same thing as if SMR's were not considered in a decision. I am still not counting my chickens because I know how slippery the VA is on CUE's.

[Rockhound]

John999: Thank you. Not that I don't listen to others who disagree, your one of the few who seem to be going through something that is similiar to my situation. I am quite aware of the quandries and pitfalls a CUE claim has. A steady diet of reading CUE claims has made the point as clear as day. However, I have yet to come across a CUE claim of an original claim in which a change in the diagnosis was improperly done by a VARO rater, and then the alternate diagnosis was used to deny SC.

If anyone has seen such a CUE claim, please let me know of it, so that I may study its reason and basis to see if I can use it in my own claim.

In my claim, simply put, a mental disorder diagnosed in service and well documented was improperly changed to a PD then denying the claim since a PD is not a disease or injury for which SC can be attached.

Of course I can go on to say that this is not so, as PD superimposed on a mental disorder or vise versa, can be SC. Since they the rater said the PD was an alternater and correct diagnosis, no matter that it was not supported by any evidence, they got around this SC for it being superimposed on a mental disorder.

Any help on similiar CUE claims is appreciated.

Rockhound Rider

[Teac]

Rockhound,

I don't know of any specific cue claim you can study. I do know that I have won two different cue claims and while others say they are hard to win, that is not really true. If the evidence is in the file a Claim of Cue is easy to prove.....

If you have a true CUE claim...there is no magic bullet just point out the error...

"Clear and Unmistakable Error" - also commonly known as CUE - is a mechanism to reopen old claims by challenging "clear and unmistakable error" in a final VA decision. This procedural device is rarely used, and even more rarely successful. However, it is an enormously, beneficial remedy for the veteran when properly applied.

The normal rule is a Rating Decision by the Regional Office becomes final and not appellable unless the veteran files a Notice of Disagreement within one year of the date of the Rating Decision. [see Appeal] If the veteran fails to appeal the Rating Decision, the veteran is bound by it. Whatever it has decided is binding. It is an "adjudicated" or final decision. The veteran can only avoid its effect by seeking to reopen the claim with new and material evidence or filing a CUE claim. The same is true with a decision by the Board of Veterans Appeals. In the event the veteran does not timely appeal a Board of Veterans Appeals' decision to the United States Court of Appeals for Veterans Claims, the veteran is bound by it.

The purpose of the CUE claim is simple and straight forward. Like everything else in the VA claims process, it is extremely technical, and entirely dependent upon the facts involved. Its focus is to revise a finally decided claim because the final decision was based on "clear and unmistakable error". It may used against any Regional Office Rating Decision, or in most instances against any decision by the Board of Veterans Appeals. It, however, may not be used against claims twice decided by the Board of Veterans' Appeals, or by claims finally decided by the United States Court of Appeals for Veterans Claims, the United States Court of Appeals for the Federal Circuit, or the extremely improbable decision on a claim by the United States Supreme Court.

The relevant regulations provide a CUE claim must: (1) clearly and specifically set forth in sufficient detail; (2) the alleged CUE of fact or law; (3) the legal or factual basis for such a claim; and, (4) why the result would have been "manifestly different", but for the alleged error."

Unfortunately, the normal rules friendly to the veteran do not apply in a CUE claim. Specifically, this includes the following rules which do not apply: (1) the "benefit of the doubt" rule which mandates the veteran receive every benefit of the doubt in the development and review of his or her claim; (2) the "new and material evidence" rule which reopens a claim if the veteran supplies new and material evidence; (3) the VA's duty to develop the claim in so far as it must obtain records and provide the veteran notice; and, (4) the VA's general duty to assist the veteran in his or her making the claim. These rules, the heart of VA claims processes, do not apply.

The focus of the CUE claim's review is not new evidence. In fact, new evidence is not admissible. Instead, the focus is on the evidence which was in the record, or which was in the possession of the VA but had not been placed into the record. The latter instance might include service medical records which had been misfiled or simply never properly retrieved by the VA in its development of the claim. While these records were not in the actual claim record, the records must have been in the possession of the VA though to be considered.

The focus of the VA's review of the CUE claim is whether the alleged error actually occurred, and, even if it did, would the result have been "manifestly different". That is favorable to the veteran, but for the error.

While a veteran may not challenge a final decision by a CUE claim based on the VA's alleged failure to develop the claim's file originally, or provide the veteran the appropriate notices required by the law, or any other failure in its duty to assist the veteran in making his claim, a CUE claim may be used to challenge the VA's failure to "sympathetically develop" a claim. However, this failure must be evident from a review of the actual record the claim was decided on, including other documents not in the claims' file, but which were in the possession of the VA at the time of the decision. This type of failure is most often focused on the VA's failure to develop the claim by broadly reviewing the evidence for all claims whether raised by the veteran or not. The VA's limited focus of reviewing the evidence failed its duty to broadly and sympathetically develop the entire range of available claims. That is, the VA missed a claim, although not raised by the specific language of the claim, which was raised by the evidence contained in the record.

For instance, assume a veteran files a simple hand-written filled in form seeking relief for his headaches. While developing the record in the claim, evidence comes forward from whatever sources which shows veteran actually is suffering from several other maladies which appear potentially service-connected. Possibly a herniated disc in his cervical spine, and diabetes (and he is a Vietnam veteran with presumed exposure to Agent Orange). The VA must develop these claims. It must then also make a decision on them. In the event it does not, the claims remain unadjudicated claims.

Another type of CUE claim is an attack on the effective date granted to a claim. This is often seen in either of two failures by the VA.

The first is the non-adjudication of a claim expressly raised by the veteran. If the record shows veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim.

The second is an offshoot of the CUE claim based on the VA's failure to sympathetically develop the claim as described above. If the VA had ignored a claim which had been raised by the evidence - and not raised by the veteran's actual claim - [as described above] the claim was and remains unadjudicated. As such, the claim is a pending, never-decided, non-final claim. If a veteran files a claim for the same benefit sometimes thereafter, the effective date for the new claim relates back to the date the evidence first existed in the prior unadjudicated claim's file. That is, although it is a new claim, since it is seeking benefits which are like the benefits the unadjudicated claim's benefits sought [or should have sought if the VA had developed the claim properly when it was raised by the evidence], its effective date relates back to the time when evidence existed in the record which triggered the VA's duty to sympathetically develop that prior claim.

CUE claims can also be based on failures to follow the law in effect at the time of the original decision. This includes both regulations and statutes.

Edited July 16, 2008 by Teac (see edit history)

[john999]

Teac

My CUE is based on the fact that the VA had in its possession a medical report from my doctor that it did not list or consider in my original decision. This seems to fit the definition of a CUE that you discuss in terms of SMR's. If the VA had condsidered my doctor's report I believe the rating I got would have been significantly different. There is no doubt that they had my doctor's report, and no mention of it in the decision. I filed within one year of discharge so if there is any change in rating it will go back to the day after I was discharged. This error occurred when I was a very young man and truste that the VA would not just low ball me, and refuse to consider crucial evidence. Or maybe they were just sloppy and did not give a damn.

[Teac]

Teac

My CUE is based on the fact that the VA had in its possession a medical report from my doctor that it did not list or consider in my original decision. This seems to fit the definition of a CUE that you discuss in terms of SMR's. If the VA had condsidered my doctor's report I believe the rating I got would have been significantly different. There is no doubt that they had my doctor's report, and no mention of it in the decision. I filed within one year of discharge so if there is any change in rating it will go back to the day after I was discharged. This error occurred when I was a very young man and truste that the VA would not just low ball me, and refuse to consider crucial evidence. Or maybe they were just sloppy and did not give a damn.

John,

The va does not always list everything it considers when they make a rating decision. I have many claims that only show one item of evidence that was considered while other claims show many items as evidence. I don't really know if the va is required to list every piece of evidence received and considered when they issue a rating. I guess if the claim is awarded to the satification of the veteran it really doesn't matter. While if the claim is denied as in your situation it might matter. I am more of the opinion that the va overlooks stuff because the are in too much of a hurry to work the claims for the sake of numbers. I alway read the reason for denial and go from there. If the reason points to something that makes it apparent that evidence was overlooked then that may be the only way to tell if you have a true CUE claim. Otherwise it then becomes a guessing game, because no matter how much a veteran keeps track of the evidence he may submit it can be very hard to prove what the va claims they have recieved vrs what you submit.

I am not one to think the va is out to shaft anyone. But at the same time I never take a denial at face value... best of luck

[john999]

Teac

If the only evidence in a claim is SMR's, a VA doctor's report and the veteran's doctor's report, and the VA fails to consider, list, or reference in any way the veteran's doctor's report then how can you have due process? There were only three pieces of evidence. There was the evidence that was twisted to support the VA's position, and there was the evidence that represented the veteran's position. Even the DRO said it did not make sense, and that I should have gotten a larger award. However, he will need some brass ones to grant 25 or 30 years of increased compensation, so my hopes are not that high, but I will appeal. If I had gotten decent representation I would have appealed the decision ,and not let it become final 35 years ago. I don't believe I had any representation from a VSO, nor was I informed that I could get it.

[Rockhound]

Reason for Decision:

Although Mr. XXXXXX sustained a concussion while on active duty, the latest VA examination is negative for residual disability. Accordingly , there is no disease or injury incurred in or aggravated by military service to which a grant of service connection could attach. Available records which form a portion or Mr. XXXXXX C File indicate a pattern of disability first thought to stem from a psychosis and later found to stem, instead, from a personality disorder. As the latter is a condition congenital and developmental in nature for which disability compensation benefits are not payable, service connection must be withheld. We regret that the evidence now on file does not permit a more favorable determination. We will continue to review any later furnished evidence that is pertinent to the matters under discussion.

This is one of my major bones of contention in my CUE claim and where if certain procedures, regulations, and laws were followed, this would not have occured.

The available records that the VA rater is refering to, can only have come from two sources. One was the verbal history, taken during my hospitalization in-service, for a mental disorder, as evidenced by the USNavy Medical Board and repeated during my C&P Exam and the opinion made by the VA C&P Examiner of a PD diagnosis, evidenced in the VA C&P examination summery report.

Neither of these reports speak of any disability that indicated a patern of disability first thought to stem from a psychosis and was later found to stem instead, from a PD. This amounts to pure conjecture by the VA Rater and is clearly unsupported. If there is such evidence, then I am not privy to it, and by not defining what evidence in the C-File says or states this, fails then to give a proper reason and basis for the decision, on which the Veteran, (me) can base an appeal on.

How can I lay the ground work for a proper appeal, If I don't know what evidence in the C-File was used, to give them the reason and basis for their decision?

Rockhound Rider

[Angela]

John 999

If I understand your post, you believe the VA didn't consider evidence?

If that's the case...

Have you requested a copy of your C-File (claims file)? Before I sent in my CUE I requested a copy of my c-file and didn't file the CUE until I have received it. The reason I did this was to make sure that the records they didn't consider were actually in my file. I figured, if they sent me a copy of the record, they couldn't later say it wasn't there.

Also, concerning any record the VA didn't consider. Was that record a service record. What I mean is, were you active duty at the time and was it from a military clinic or hospital? If so, and it's not in your file right now, you can have your claim reopened and be paid back to the date you left service based on newly discovered service records. Someone correct me if I'm wrong here, but that's how I read ...

38 CFR 3.156 © at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first

decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

If I've misunderstood and you aren't saying they failed to consider evidence...

are you saying they made errors in their Evaluation of the Evidence?

Edited July 26, 2008 by Angela (see edit history)

[Angela]

Also, have you had a reevaluation recently? If you reopen and get a higher percentage you can then assert CUE due to the fact that your condition is the same now as it was then. Those types of CUE seem to be granted much more often than any other. Also, reopening now for higher percentage doesn't leave you vulnerable to a decreased percentage since your rating has been in effect for more than 20 years.

Just a thought...