New Question On Cue

[Rockhound]

Berta: You stated in a another posting,

"It might be a CUE in some cases-

CUE:1. final VA or BVA decision

2. legal error in that decision (not DTA error or medical disagreement etc)

3. manifested alter outcome but for CUE (meaning the CUE cost the vet some retro)"

My question is this: If I prove (1) & (2) of CUE and then show how the evidenc at the time demonstrated, that had it not been for the error, SC should have been awarded to at least 10%, then does that mean that number (3) requirement of CUE is met, showing that outcome would have been manifestly changed?

Rockhound Rider a.k.a. Jim ;)

[Hoppy]

Rockhound,

I know you do not want to argue. However, remember that this interaction is the way claims are won. There were guys on hadit when I was battling my claim who tore me apart. They told me my claim was a loser and I would never win. I am glad I used there adversity to strengthen my claim. I am coming up with some high standards. I can assure you from my experiences and the many cases I have read that the VA will be also be very protective of their raters and paying off CUES. As you will see I am recommending that you get a doctor to back you up on your attacks against the VA.

That C&P saying the symptoms were in remission, at face value, is a serious blow to SC. I would not expect the VA to drop this easily. The strongest attack would be to get a medical opinion that at that time the C&P examiner would not have been capable of making such an evaluation of remission of symptoms without testing. Your assumption and or opinion based on reading literature that the doctor erred or his opinion is flawed could easily be ignored by the VA, even if you are right, due to your lack of medical authority. How do you know what tests he would have needed to run and if so what are they? If you cannot get the remission exam thrown out then I do not know how they can give you a rating. This exam could easily override your SMR’s.

You might want to research the way CUES are resolved when the errors are made by doctors. And when errors result from an adjudicator’s failure to develop a claim by seeking clarification of reports made by doctors who did not perform adequate testing. If you find something positive pass it along. You are claiming there is clearly an error. However, I have seen no medical opinion that the C&P doctor erred. Nor, can I implicate the rater for making a clear error. You might need to show with medical authority that the C&P examiner was not capable of determining remission by his exam process and the rater should have known this was an error.

In regards to the SMR including all the evidence necessary for service connection, I have never seen a case involving a condition that is known to have periods of peak symptoms and remissions service connected without evaluation of the post service symptoms. The C&P examiners comments support the fact that your condition is subject to remission and this is also what I was taught in school. Such evaluation, by the VA, of conditions with peaks and remissions is ongoing and in many cases re-evaluated yearly. The fact that your military records support a potential rateable condition does not prove that the condition was ongoing. Having not seen any other mention of post service treatment, you are of the opinion that because the C&P is worthless then you are exempt from having to prove a post service disability and that the VA will be required to extend the military evaluation until proven differently. I certainly hope your argument flies. This is one of those legal things that is way beyond me.

I am not sure why the personality disorder diagnosis was being disputed. And why you were talking about the types of evidence needed for the diagnosis of PD. As far as I am concerned if there were no notations of severe social or industrial maladjustment the PD diagnosis has no bearing on your claim. As far as the 1974 claim goes the PD could easily have not involved rateable symptoms. As far as a current diagnosis the PD in 74 could be disputed as not meeting the stricter diagnostic requirement of the DSM IV.

The literature or opinions you noted in your comments about PD’s is from the DSM IV. In 1974 they used the DSM II. PD’s were diagnosed very differently in 1974. There was no requirement that there be any significant social or industrial maladjustment. Psychologists used PD’s in such a manner that it was considered no more than name calling and most cases did not involve any symptoms that would be rateable by the VA. I heard a clinical psychologist (PHD) refer to PD’s as name calling in a lecture at a university in 1970. Later, the DSM IV specifically changed the way PD’s were diagnosed and made it a requirement of the diagnosis that there be significant social and industrial maladjustment. If there was no significant maladjustment then the symptoms would be called personality traits.

[Ricky]

Rockhound,

I know you do not want to argue. However, remember that this interaction is the way claims are won. There were guys on hadit when I was battling my claim who tore me apart. They told me my claim was a loser and I would never win. I am glad I used there adversity to strengthen my claim. I am coming up with some high standards. I can assure you from my experiences and the many cases I have read that the VA will be also be very protective of their raters and paying off CUES. As you will see I am recommending that you get a doctor to back you up on your attacks against the VA.

That C&P saying the symptoms were in remission, at face value, is a serious blow to SC. I would not expect the VA to drop this easily. The strongest attack would be to get a medical opinion that at that time the C&P examiner would not have been capable of making such an evaluation of remission of symptoms without testing. Your assumption and or opinion based on reading literature that the doctor erred or his opinion is flawed could easily be ignored by the VA, even if you are right, due to your lack of medical authority. How do you know what tests he would have needed to run and if so what are they? If you cannot get the remission exam thrown out then I do not know how they can give you a rating. This exam could easily override your SMR’s.

You might want to research the way CUES are resolved when the errors are made by doctors. And when errors result from an adjudicator’s failure to develop a claim by seeking clarification of reports made by doctors who did not perform adequate testing. If you find something positive pass it along. You are claiming there is clearly an error. However, I have seen no medical opinion that the C&P doctor erred. Nor, can I implicate the rater for making a clear error. You might need to show with medical authority that the C&P examiner was not capable of determining remission by his exam process and the rater should have known this was an error.

In regards to the SMR including all the evidence necessary for service connection, I have never seen a case involving a condition that is known to have periods of peak symptoms and remissions service connected without evaluation of the post service symptoms. The C&P examiners comments support the fact that your condition is subject to remission and this is also what I was taught in school. Such evaluation, by the VA, of conditions with peaks and remissions is ongoing and in many cases re-evaluated yearly. The fact that your military records support a potential rateable condition does not prove that the condition was ongoing. Having not seen any other mention of post service treatment, you are of the opinion that because the C&P is worthless then you are exempt from having to prove a post service disability and that the VA will be required to extend the military evaluation until proven differently. I certainly hope your argument flies. This is one of those legal things that is way beyond me.

I am not sure why the personality disorder diagnosis was being disputed. And why you were talking about the types of evidence needed for the diagnosis of PD. As far as I am concerned if there were no notations of severe social or industrial maladjustment the PD diagnosis has no bearing on your claim. As far as the 1974 claim goes the PD could easily have not involved rateable symptoms. As far as a current diagnosis the PD in 74 could be disputed as not meeting the stricter diagnostic requirement of the DSM IV.

The literature or opinions you noted in your comments about PD’s is from the DSM IV. In 1974 they used the DSM II. PD’s were diagnosed very differently in 1974. There was no requirement that there be any significant social or industrial maladjustment. Psychologists used PD’s in such a manner that it was considered no more than name calling and most cases did not involve any symptoms that would be rateable by the VA. I heard a clinical psychologist (PHD) refer to PD’s as name calling in a lecture at a university in 1970. Later, the DSM IV specifically changed the way PD’s were diagnosed and made it a requirement of the diagnosis that there be significant social and industrial maladjustment. If there was no significant maladjustment then the symptoms would be called personality traits.

EXCELLENT POST HOPPY!!!!!!!

[Rockhound]

Hoppy: I hear what you are saying and I am not hearing what you are saying. Dose that make any since to you?

First off, I used to think that the C&P examiner was the one who was all wrong, but now after the umpteenth time re-reading the examiners report, it makes more sence that his diagnosis at the time was a seperate diagnosis at the time, because he went on to say that because of what he found in the history, that it would be difficult to substantiate in his opinion a solid diagnosis of schizophrenia.

Given that he had neither any current psychometric tests or other evidentiary requirements, not withstanding the psychotic episode was in remission, to support what he found compelling in the history to make his PD opinion. and the fact he states the person does represent an inadequate PD with a very modest intellectual capabilities (despite the fact he was tested during hospitalization on as having a high average intellectual quotient) This opinion also finds no supporting evidence such as a similiar test, like that done while hospitalized in-service, for it to have any weight as fact.

It is because of this that I believe, not only was the PD unsupported, the opinion on schizophrenia with out merit, and the assertion by the Rater that the examiner found the original diagnosis on which SC was predicated was in error and that his current and unsupported opinion of a PD was a correction of it.

Had the VA Rater followed the proper Statutory and Regulatory provisions at the time. The evidence would have shown that the original diagnosis could have stood the test for SC and the only matter then was for the Rater to determine the social and industrial impact the SC mental disorder would have on the rate of disability.

Their to, the evidence provided by the in-service medical board provided the necessary evidence when it said that the patient demostrates moderate impairment for future social and industrial adaptability, but severe impairment for future military service. MODERATE being the optimum word, which meets the requirement for at least a minimum rating of 10%. or if a temporary rating is applied, then a 50% rating is warrented for six months, at which time a new evaluation would then be done to consider whether a decrease or increase in disability would be warrented.

Although I can not probably inter into evidence for thing subsequent to 1974, If I plan to CUE the claim back to then, but my schooling and training is not at the level of a layman or average person. My schooling includes Hospital Corpsman School (A) Increase in Rating from Seaman to 3rd class petty officer. Junior Petty Officer for Physicals evaluations for a Navy Drug Rehab Center, Finished my GED High School requirements, Semi independent duty as junior medical officer aboard a DD class US Navy Distroyer, graduate of Portsmoth Virginia Police Acadamy. Nurses aid on a Stoke victems ward and nursing home for the aged with conditions relating to heart, respritory, & cognitive difficulties requiring 24hr care. Private duty care, Psych Aid on a closed psychiatric ward for a county psychiatric hospital. Certified EMT-I, not with standing the number of patient records I was required to be familiar with and also diagnostic and treatment records I was required to maintain as the treating medical officer on board the DD class Distroyer with around 200 service men aboard. Also having read and studied a number of medical treateses that related to the different types of schizophrenias and PDs.

No I am not what you would consider an average layman nor without a modocum of medical knowledge and training. If I had non of my psychiatric problems and the residual effects that followed, I could have well gone on to any number of the jobs for which I had basic training in. If I could have stood the rigors of College, I could have well have gone on to finish a degree in nursing, become a Paramedic, a Police officer, maybe even a psychologist with a Phd by now, who knows what life would have been like had I not been hampered by my psychological roadblocks.

I'm one of the many that fell through the cracks in the system and had the VA done their job properly the way the statutory and regulatory provisions said they should have, I wouldn't be in the mess I am in now.

They messed up in 1974 and I want them to admit to it one way or another. I don't care as much for the money a EED would bring, I wouldn't even care if I won CUE and I was only given a 10% from day one till now. Although I think that at least 50% or more is warrented from 2004 when I was rated that for NSC of an adjustment disorder with depression and anxiety.

I stand more on the priciple of the thing than I do any monetary consideration.

Another point to make also. New evidence that supports a cognitive disorder due to frontal lobe trauma may allow me to re-open my claim for the minor TBI/cerebral concussion with frontal lobe of the brain involvement. Showing that the SC nasal bone fracture was not the only result of the blow to the head. That even though I had a head injury during my pre-school years, with no noted lasting effects, the injury to the head while in service could be looked upon as either a new injury or that this latest injury only increased the damage that was at the time otherwise unable to be noted or diagnosable to any degree. I'm still waiting on the final report of the neuropsychiatrical testing that I was able to have done and puts in writing that which the examiner has already discussed with me in person.

The hours is late, and to comment further would require me to re-read both Hoppy's reply and mine to help make anything further I say or comment on, make any sence to you or me. LoL

If the heat doesn't get me, the smoke from the CA fires will. I got to remember to call for my Oxygen bottles to be refilled, going outside is most haserdess to my health these days.

RR a.k.a. Jim ;)

[Rockhound]

38 C.F.R. 4.129 Social Adaptability. (1974)

Social integration is one of the test evidence of mental health and reflects the ability to establish (togehter with the desire to establish) healthy and effective interpersonal relationships, Poor contact with the other human beings may be an index of emotional illness, However, in evaluating impairment resultinf from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it effects industrial adaptability. The Principle of social and industrial inadaptability as the basic criterion for ration diability from the mental disorders comtemplates those abnormalities of conduet, judgement, and entional reaction; which effect economic adjustment, i.e., which produce impairment of earning capacity.

Even the VA C&P Examiner makes comments in his report on problems I was having in both proformance of my job in civilain life and as to emotional problems noted by at least one of the employers between the time of discharge and the C&P examination. And a history that showed I had trouble maintaining a job and moved around a lot, unable to settle in one place for any length of time, with no social history to speak of to compair to a normal person.

Even with a condition in remission, when considered for SC, social and industrial adaptability must be evaluated for such periods. Had they SC the Acute Schizophrenic Episode, in remission

They then would have had to evaluate the impairment to social and industrial adaptability during that time. The US Navy Medical Board Summery Report clearly stated that the person demostrated moderate impairment to further social and industrial adaptability and that this condition was probably perminent.

When the medical board said it was probably perminent, I take that to mean that the impairment is moderate in severety in the forseeable future, that it should be evaluated from time to time to determine that it is perminent in nature. Although a periodicaly rise and fall in severety does not in itself mean that the condition is not perminent in nature either.

Sorry, I'm beginning to write a book I think and my meds are finally kicking in and my cat has taken residency in the middle of my bed, so now I risk a cat fight to see who gets what side of the bed and how much of the covers I get for myself. LoL

You bet I let him have his way. Have you ever been awaken from a dead sleep with a cat on your chest meowing and slapping you in the face with a paw, telling you to wake up and feed him. Throwing the cat across the room is not an option. He's the only company I have now since my othe best friend Dutches died suddenly, with out warning she had been ill, or at least that I was able to notice. Dutches was only about 7 yrs old, a terrier/poodle mix and who was never cross with me of even so much as tried to bite me either, although there were times I am sure, that any other dog might had done so.

Good night all,

RR a.ka. Jim ;) ;)

[Hoppy]

"When the medical board said it was probably perminent, I take that to mean that the impairment is moderate in severety in the forseeable future, that it should be evaluated from time to time to determine that it is perminent in nature. Although a periodicaly rise and fall in severety does not in itself mean that the condition is not perminent in nature either."

If you could find a CFR indicating the events or time frame that follow-up evaluations are required this would be a big help. Without any CFR "probably perminent" is plenty of wiggle room for a rater to just schedule a single C&P and let the remission diagnosis continue until you request another exam. I agree that medical principals would dictate a more ongoing evaluation. However, it is a question if and when the further evalutions would be required by rater if the doctor does not address this issue in his report.

I have read dozens of BVA denials where doctors used terms such as recurrent rather than chronic and repeated episodes and they still denied them as not showing sufficient chronicity as to be considered disabling. The VA takes advantage of wiggle room.

The evidence you talk about over the years is compeling. I just hope you are getting doctor to back you up. I wasted 5 years telling the VA what I knew about angioedema. To me it was a slam dunk. Until I got an immunologist to go to bat for me (as directed by Alex H. and Clark Evans) the RO would not even schedule a C&P. They ignored every thing I said. Eventually I won the claim on the immunologists report. I never had a C&P. I just got the immunologist to put in a report the same stuff I had been telling the RO for five years.

The system is corrupt and if it were up to me the VA would be required to re-adjudicate every claim since the establishment of the non adversarial system. All claims would be CUE able. You had a significant disabling condition. I guarantee you if you had a good industrial injury lawyer review your SMR at discharge you would have done much better.

There were ways to win CUES based on failure to review evidence at the time of an original decision. However, I am not real familar with these cases.

[Rockhound]

Hoppy, you stated, "If you could find a CFR indicating the events or time frame that follow-up evaluations are required this would be a big help. Without any CFR "probably perminent" is plenty of wiggle room for a rater to just schedule a single C&P and let the remission diagnosis continue until you request another exam. I agree that medical principals would dictate a more ongoing evaluation. However, it is a question if and when the further evalutions would be required by rater if the doctor does not address this issue in his report."

As to a CFR that requires followup evaluations, is another of those wiggle room ways the VA uses to deny claims. They state you must be hospitalized for six months in order to receive a conditional SC for your disease or injury. I was only hospitalized for three or four months, if given my transfer to a VA hospital counts, even if they allowed me leave to visit at home.

The three months was in-service and the rest was a transfer to a VA hospital to await discharge from the service. I actually only spent a few days there, the rest of the time, they allowed me to take leave from the hospital to visit mother at home.

When you consider the word probably, back in 1974, it was the same as saying it was as likely as not the condition would be permenent. again here is that wiggle room you are talking about. Since specific language used by one agency was not the same used by another, the Veteran has to go about proving the condition was actually as likely as not permenent or better still, was more likely than not.

I agree with you, in that a condition that was probably permenent should have been given a conditional rating, and rated periodically to keep track on its chronicity. Once found to be present after a subsequant examination, then the Veteran should only have to show severity change from then on.

Moderate in VA language at the time denoted a rating to at least 10% in severity, the least amount necessary to show chronicity for future evaluations.

Looking now at BVA cases under "ERROR" and found a few interesting claims, but surching COVA cases, is a nightmare, since their doesn't seem to be any rhyme nor reason to their serch engine when looking up spicific type cases.

One thing I have found. Taking the Statement in the claim and the evidence they used to decide the claim. They only provide enough of the evidence that suggests that it supports their idea of the evidence. But when you take the whole of what they used, the evidence displays a different and opposite idea, more slanted to the Veteran than to the VA.

Although the VA would say this is no more than how they weighed the evidence, it really goes to how the VA did not sympatheically and fully look at the entirity of the evidence, before weighing it one way or the other. He failed to follow proper statutory and regulatory provisions extent at the time and had he considered the evidence in its entirity and not piece meal as he did, would have manifestly changed the outcome of the claim

(1) the correct facts, as they were known at the time, must not have been before

the adjudicator (a simple disagreement as to how the facts were weighted or

evaluated will not suffice) or (2) the law in effect at that time was

incorrectly applied; the error must be undebatable and (3) of a sort which, had

it not been made, would have manifestly changed the outcome at the time it was

made; and (4) the determination of clear and unmistakable error must be based

on the record and law that existed at the time of the prior adjudication.

38 U.S.C.A. § 5109A

Rockhound Rider B)