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 ;)

[Angela]

Rockhound, it seems that you're saying the VA didn't consider all evidence of record as required by 38 CFR. It's very hard to prove that all evidence wasn't considered. Even more so if the decision dates from before 1990. It wasn't until then that 38 U.S.C. 5104b was added to require RO decisions to specify the evidence considered and the reasons for the disposition.

One way is to show that the rater made a misstatement about the evidence that "denied the very existence of evidence" (read Russell v Principi CAVC 90-396). I used this method to show CUE, pointing out that the rater stated "all surgical options have been exhaused" when the record stated ..."patient informed that colostomy is an option ... ".

I'd go over the decision and compare it with each record of treatment to see if I could locate any statements that can be proven inaccurate.

Edited August 9, 2008 by Angela

[Angela]

You mentioned trouble searching CAVC cases. I came across this one that may be of use to you.

No. 91-676 Franklin G. Elliott, Jr., Appellant, v. Edward J. Derwinski

"The decision fails to reveal whether the Board considered the diagnoses of psychiatric disease and personality disorder to establish overlapping and coexisting conditions, or whether it viewed them as conflicting diagnoses of a single condition. In readjudicating the claim on remand, the Board must determine whether the veteran suffered, prior to, during, and within one year after his qualifying periods of service, from a psychiatric disorder, a personality disorder, or both, resolving all conflicting evidence and discussing the applicability of the benefit-of-the-doubt rule. See 38 U. S.C. ù 5107B (formerly ù 3007); Gilbert, 1 Vet.App. at 53-56. "

Edited August 9, 2008 by Angela

[Rockhound]

Thank you Angela: This is, at least in part, is what my CUE Claim is about. The Decision's reason and basis, isn't supported. It fails to reveal whether the Rater considered the diagnoses of psychiatric disease and personality disorder to establish overlapping and coexisting

conditions, or whether it viewed them as conflicting diagnoses of a single

condition. The decision must determine whether the veteran suffered, prior to, during, and within one year.

Even the decision came before the one year, so part doesn't hold up, that the C&P examiner couldn't fully support a solid diangnosis of schizophrenia doesn't really confirm the diagnosis one way or the other. and their was no discussion what so ever as to the two conditions being overlapping and/or coexisting nor whether I suffered either prior to service.

I have always said these are important findings that must be discusses and fully examined before a decision can be made, at least a legal one. This helps to show that.

Thanks again,

Rockhound Rider

[Angela]

Rockhound,

I'll keep you in mind while searching cases for my own CUE, and post references here if you like. Don't want to overstay my welcome on your post though if you don't feel they're helpful. So let me know.

Oh, am I reading your posts right. Were you eventually SC for your condition? If so, what did they say in that decision about the conflicting opinions? Or did they even address them?

[Hoppy]

Rockhound,

You have a really good grasp on this stuff. I went into the Navy on the buddy plan with a high school acquaintance who worked for the same company I did after we graduated. He was hospitalized for schizophrenia six months after he entered the Navy. When he was discharged he was getting 100% disability from the VA, long term disability from our employer and social security. He was getting over twice as much as when he was working before he went in the Navy. I could not figure out why you were not rated at discharge. I guess it was because your hospital stay was to short. My buddy was hospitalized for close to a year. I will also look around for some cases that will help.

“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.”

This is the type of evidence that is strongest in your claim. If you can find some cases where the failure of the rater to require more than a single exam seven months after service in which the doctor did not specifically address the new issues that arose as a result of the C&P examination and such failure to address was considered a serious error would be a way to go. The following is the fullest assault that I can muster.

A problem that has not been discussed is the possibility that PD was secondary to the Schizophrenia I would argue that the C&P examiner contradicted himself or was so superficial (failed to address new symptoms etiology) that he wrote a report that was such garbage that it should have been thrown in the trash. The adjudicator is not qualified to make a determination that the PD was unrelated to your schizophrenia and the C&P doctor did not specifically rule it out. Additionally, without such a follow up it can be argued that any symptoms of PD would be considered entwined with the schizophrenic disorder until shown otherwise. The statement of the C&P examiner (paraphrasing what you said earlier)) that the symptoms were not sufficient to present a picture that would fully support a continued diagnosis of the schizophrenia actually can be interpreted that those symptoms that are supported were entwined between schizophrenia and the PD. There is a CFR or M-21 requirement that if symptoms are entwined between a service connected condition and a post service condition then the symptoms of the post service condition are to be rated with the in service condition.

Additionally, the C&P examiner did not rule out that you were not disabled. Thus, the in service condition is shown to have continued by the evidence in the reports taken as a whole. The argument I have seen in BVA cases is that there was no evidence the in service condition resolved. It is more than an issue of weight. It is an issue of the raters failure to have the doctor answer OBVIOUS new issues that were the result of a new diagnosis of PD. Also, remember the old argument that the C&P was such garbage that they should be stuck with the language they used on your exit exam until proven differently. I am not sure if it will fly. However, I would continue to use this argument until you are told by a court that it is not applicable.

Basically, the failure of the adjudicator to seek medical determinations for OBVIOUS new issues identified in the C&P that were beyond his level of expertise resulted in a denial based on the raters knowledge of medicine rather than a doctors knowledge of medicine. I am sure there are CFR’s that prevent raters from making medical determinations

I do have a problem with the comparison of “probably” to “more likely than not”. The more likely than not is a principal that is used when there is a question of a post service condition that is known to exist and how it relates to the relationship between the post service condition an in service events or symptoms.

Even if a doctor was to say that your condition had a likelihood of 95% to continue after service I would not expect the VA to service connect it. I have read many cases involving episodic medical conditions which were known by military doctors to be chronic, and or have no cure that were not service connected at any time after service, due to the fact that they were not considered sufficiently chronic to be disabling.

In the 70’s and 80’s the rating schedule used vague terms to describe chronicity. As time went on they changed the schedule to include a count of the episodes per year and the duration and level of symptoms for the medical conditions I am familiar with.

In essence service connection is based on actual or historic events and not a prediction that includes a possibility that you will be one of the cases that did not continued to be chronic or have sufficient episodes to meet the rating schedules system of counting the episodes per a specific time frame. I have seen cases where the VA used this to deny cases for many years until the number of episodes per year increased.

This is not to say that the rater did an adequate job on your claim. There are plenty of reasons for your claim to have been developed better.

[Rockhound]

Just got home from grocery shopping and I am a bit bushed. Thanks hoppy for the post, I will have to read it again when I am more rested. Some of it is a bit confusing, but that is no reflection on you or your writing, it is more my tired state of mind right now.

Angela, always feel free to post anything you think is of value to me such as what you posted earlier. It was has me re-thinking some issues of my CUE claim and has me doing a re-write to see if it make more sence to me along with some of my other ideas.

No! I have yet to be SC for my psychiatrict problems. Just when I think my psychiatrist is beginning to understand my problems and begin to help me with entries in my medical records that are helpfull, she either desides to move away, gets pregnant, or she turns out to be doing her residency and her residency time is up and she must move on to another deciplin. Then I have explain everything all over again, since the new pyschiatrist doesn't seem to grasp what the previous psychiatrist was saying in regards to my overall problem.

Pill time and time for bed.

Rockhound Rider