Riddle Me This For An Original Claim

[Rockhound]

I have been trying to understand the process by which a diagnosis, on which SC is predicated, is able to be changed to a diagnosis, that SC can not be attached.

(01) What pertinent Laws and regulations, must the SOC sight, to give proper reason and basis for a change in a diagnosis on which SC was predicated upon and an alternate diagnosis be used as the correction the prior diagnosis?

(02) What language must the medical report, on which the Claims Rater/Adjudicator relied upon, be used, to convey that a change in the diagnosis, on which SC was predicated upon, was warrented? Further, convey that a current diagnosis was to be used to correct the prior diagnosis?

(03) What procedure must the Rater/Adjudicator follow, in order to make such a change in diagnosis? Does the Rater/adjudicator have the authority by himself to determine that a change in a diagnosis should be done or must he receive approval from Adjudicators highter up in the chain of adjudication?

(04) Must the Claiment be given notice of the adverse decision/change of diagnosis, prior to a final determination on the claim? If so, how long and/or what type of a notice is required, before a final decision can be made?

Your understanding of this change of diagnosis process and/or sighting of pertinent Laws and Regualtions and the procedural steps necessary for such a change in diagnosis will be of great help I'm sure.

I have found many instances (court cases), Laws and Regualtion that pretain to a change of diagnosis of a previously SC disease and or injury, but nothing pretaining to an original claim for SC of a disease or injury that is documented in-service but before SC could be attached, the diagnosis was changed to one for which SC could not be attached.

As thoughs who have read my prior posts on this issue, they know that I believe that the process, laws, regulations, that should have been used in my original claim where not used and the ones that were sighted in the statement of the case, were insufficient to give reason and basis for a change of diagnosis to be proper and/or warrented and thusly used to deny SC for the original in-service diagnosis.

Each time I think I have my claim figured out, something I have read and re-read here, from your replys clicks in my head and I have to rethink everything, well almost everything, so that I am able to provide the correct information and reasoning, so that my claim can prevail or at least have a strong enough claim to prevail.

It's after 4:00 a.m. it's one of those sleepless nights, dispited having taken all my medications, so I can not be sure that all this makes any sinse, but I hope it does. enough time has passed, so I can now take another pill to help me sleep, maybe now I can lay down and not just toss and turn, with my thoughts still rasing away. Good night or good morning, which ever is your poison.

Rockhound Rider a.k.a. Jim

[Hoppy]

Rockhound,

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.

This, in my opinion, is an instruction for the raters to seek medical opinions addressing these issues. It is not an invitation for the raters to use there discretion to answer these questions. Additionally, "exercise caution" is rather non specific terminology and I am sure the RO will argue that caution was used.

I know of two cases whereby people were SC'd 30 years after discharge. These cases were similar to yours in that there were denials made within a couple years after discharge. These cases are very close to home (family members). Do not give up on seeking service connection. The cases I am familiar with caused total losses of all material and social affiliations for the individuals. They were hospitalized for extended period of time. They were misdiagnosed by VA docs in the 70's and thrown out of the VA system. They are now SC'd and doing much better.

I am in agreement that your claim was not properly developed. However, not for the reasons you are pointing out. Also, the rater was playing doctor and made up answers that were not supported by the medical evidence. "The VA Rater is claiming the change in the diagnosis was due to the prior diagnosis being made in error". The rater made a mistake. The question is whether or not it was a CUE. Not all mistakes are considered CUES. Even though the rater made a mistake the mistake caused a failure to properly develop the claim. Failure to develop a claim is an issue you take up on appeal. It is not necessairly a CUE.

A real issue I see now is that the raters mistake may not be an issue because you need to have medical evidence of record that you have a disability that both meets the rating schedules level of severity for a rating and the condition has to be sufficiently chronic to be considered disabling. If the doctor says one part of your condition is in remission and the other part (PD) is not service connectable how can the rater give you anything higher than a 0% rating? Medical evidence saying your inservice condition was in remission should have been rebutted in 1974. I do not think a rater can undo this significant of a statement on a C&P without going on a "fishing expedition". Additionally, the fact that it was called in remission and what I know of the way psych conditions are diagnosed leave the door wide open for any increase or change in symptoms from 1974 to your current claim. However, claims must be filed, appealed timely and medical evidence must be submitted or obtained as prescribed by VA law.

I can find and post the CUE cases showing the multiple steps needced to win CUE that includes both a "serious" adjudication error and the exixtence in the record at the time of the adjudication error of a ratable disability. However. I think you have already found this. If not, spend some time on CUES when researching.

There is no question that the denial was written in a manner to make it hard for you to understand the system and what it would take to advance your claim. This problem has gone on for decades. The VCAA was supposed to cause the RO's to make things clearer to veterans on how to advance their claims. However the cases I have ssen since the VCAA have not been much netter.