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Cue Held Up By Appeal

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Bossman

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VA presented me with a proposal on January 18th 2007 and I requested a hearing on January 25th 2007. I never received the hearing and my compensation was reduced from 80% to 60%. I found out that they made a terrible error (http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secc.doc) and I should not have been reduced.

Now, I have an appeal in with VA to prove to them that I had knee surgery to reattach my Quad tendons to my patellas (bi-lateral). My Doctor has already sent a letter by me that it is knee but when I got a copy of my C-file the letter was not there.

My VSO is telling me that I should wait until the raters correct my knee issue. I do not believe that is the case because they do not have the letter that they asked me to get to show that what I had was knee surgery. I am SC for my knees.

As my VSO explained it, I should wait until they settle the issue with my knees. If I changed to pursue the CUE (which would move me to 90%) they would have to remove my files to a different area to be worked and that would cause a delay with them recognizing that I had knee surgery even though they do not have the letter for my surgeon and over the last 10 days they have not requested it. I was told by my VSO to wait on the VCC letter. My P.O. Box is less than 2 miles away.

Am I being advised correctly?

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Bossman- I need to add- what proposal?

Did VA say 'we will give you xxxx if you drop the ZZZZ claim?'

VA never proposed to me on any level- ? I dont understand what you mean here-

Also-I see you are 70%-

if you are not working have you formally applied for TDIU yet?

If you arent working I would-if I were you- attach the TDIU form to the NOD your file on this decision-or better yet- send it in with a re-submission of your doctor's statement and make sure it is sent to the Initials and code on the right hand corrner of the last VA mail you got on this (and Iris them too)

# 18 check Yes and apply for SSA

# 25 remarks- tell them (use se[arate page in needed and refer to it here and put your name,. address and C file # on it-

tell them of the side affects of any SC meds you take that prevent you from working-

ALSO-the eczema- is this a disability that disfigures you or would make an employer maybe unwilling to hire you?

I have a vet with a facial disfigurement (SC) that is costing her adequate employment so she is applying for TDIU.People dont understand excema and other types of skin disorders.They arent catchy but can cause employment difficulties if one deals with the public.

TDIU form next post

Berta, thanks for your responses.

The proposal was to reduce a prior evaluation that I NOD'd. VA had information that I submitted showing that I have been on Corticosteriods constantly since the early 90's and began using in 1986. Constant use for 12 month's is 60%. In November 2005 my ejection fraction was 50% and an estimated MET's of 5. They will not be able to give me an exam as thorough as the first exam because I can not do the thread mill becasue of my knees.

I lost my job of 23 years becasue of the damage to my knees eventhough I qualified for ADA.

I did file for TDIU but I was denied because VA say that there is no proof that I had surgery for a SC condition. I am SC for both knees. I was approved and paid convalescence for a SC condition (Knee surgery) for 6 months and then discontinued without a schedular exam and then told that there was no evidence of surgery. VA diagnosed me with dislocated Patella's in the emergency room before surgery. I did not let VA do the surgery.

As part of processing me out of the door my job has ALLUPS handling my claim for SSI. I have been denied at every level over the last 2 years and now await a hearing that could be 3 years down the road.

The results of my knee surgery is that I can not squat, kneel, stoop, sit down without holding on to something for support or rise from a sitting position without having something to hold onto to push myself up, balance, ascend or descend steps without using a rail. Since my knees fatigue quickly I can not do a large number of steps. I can not go down deep slopes. I must use my cane or crutches at all times. Especially in unfamiliar surroundings and unlevel areas.

My eczema is not disfiguring but is painful and very uncomfortable. Eventhough my dermatologist wrote that I do have eczema over at least 20% of my body there is evidence that I have scaling over a larger area than that. VA (QTC) said that I have eczema on 3% of my body.

Can I also file for Social Security through VA even though ALLSUPS is handling a claim for me.

I went wednesday for orientation for State Vocational Rehab.

Also, on the functional capacity part of my Social Security form my doctor stated that I could not work a full-time job.

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  • HadIt.com Elder

Bossman: Found this for ya (thanks to Tbirds earlier postings). It is 38 CFR 20.1403

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE--Table of Contents

Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable

Error

Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable error;

what does not.

(a) General. Clear and unmistakable error is a very specific and

rare kind of error. It is the kind of error, of fact or of law, that

when called to the attention of later reviewers compels the conclusion,

to which reasonable minds could not differ, that the result would have

been manifestly different but for the error. Generally, either the

correct facts, as they were known at the time, were not before the

Board, or the statutory and regulatory provisions extant at the time

were incorrectly applied.

(b) Record to be reviewed--(1) General. Review for clear and

unmistakable error in a prior Board decision must be based on the record

and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21,

1992. For a Board decision issued on or after July 21, 1992, the record

that existed when that decision was made includes relevant documents

possessed by the Department of Veterans Affairs not later than 90 days

before such record was transferred to the Board for review in reaching

that decision, provided that the documents could reasonably be expected

to be part of the record.

© Errors that constitute clear and unmistakable error. To warrant

revision of a Board decision on the grounds of clear and unmistakable

error, there must have been an error in the Board's adjudication of the

appeal which, had it not been made, would have manifestly changed the

outcome when it was made. If it is not absolutely clear that a different

result would have ensued, the error complained of cannot be clear and

unmistakable.

(d) Examples of situations that are not clear and unmistakable

error--(1) Changed diagnosis. A new medical diagnosis that ``corrects''

an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to

assist.

(3) Evaluation of evidence. A disagreement as to how the facts were

weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not

include the otherwise correct application of a statute or regulation

where, subsequent to the Board decision challenged, there has been a

change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

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Bossman: Found this for ya (thanks to Tbirds earlier postings). It is 38 CFR 20.1403

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE--Table of Contents

Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable

Error

Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable error;

what does not.

(a) General. Clear and unmistakable error is a very specific and

rare kind of error. It is the kind of error, of fact or of law, that

when called to the attention of later reviewers compels the conclusion,

to which reasonable minds could not differ, that the result would have

been manifestly different but for the error. Generally, either the

correct facts, as they were known at the time, were not before the

Board, or the statutory and regulatory provisions extant at the time

were incorrectly applied.

(;) Record to be reviewed--(1) General. Review for clear and

unmistakable error in a prior Board decision must be based on the record

and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21,

1992. For a Board decision issued on or after July 21, 1992, the record

that existed when that decision was made includes relevant documents

possessed by the Department of Veterans Affairs not later than 90 days

before such record was transferred to the Board for review in reaching

that decision, provided that the documents could reasonably be expected

to be part of the record.

© Errors that constitute clear and unmistakable error. To warrant

revision of a Board decision on the grounds of clear and unmistakable

error, there must have been an error in the Board's adjudication of the

appeal which, had it not been made, would have manifestly changed the

outcome when it was made. If it is not absolutely clear that a different

result would have ensued, the error complained of cannot be clear and

unmistakable.

(d) Examples of situations that are not clear and unmistakable

error--(1) Changed diagnosis. A new medical diagnosis that ``corrects''

an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to

assist.

(3) Evaluation of evidence. A disagreement as to how the facts were

weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not

include the otherwise correct application of a statute or regulation

where, subsequent to the Board decision challenged, there has been a

change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

Thanks again Rentalguy1 for your help.

Under Admin21, MR21_1MR Part 1, Duty to Assist. Chapter 2, section C Topic 11. Part (:( Handling Hearings Requested Within 30 days.

I should have been scheduled for a hearing and I never was. However, they did reduce my percentage from 80% to 60%. Step 4 clearly states that my compensation should be continued until after a final decision.

38 CFR 20.1403 Part (2)(d)(2), states that it is not CUE that this was done. So how do I proceed since I did not get a chance to show my information that proves that I should not be reduced but should have been increased?

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  • HadIt.com Elder

1. Get out the copies of the appeal paperwork that you sent to the RO to rebutt the proposed reduction, in include the USPS receipt where you mailed it certified mail, return receipt requested. Be sure that it was all in order.

2. IRIS the RO to be sure that they actually received that appeal paperwork. Don't call the 800#. If you use IRIS, and request an e-mail response, then you'll have a paper record of the event.

3. If they didn't receive it, you'll probably have to live with the decision and file for an increase to bring the rating back up.

4. If they did receive it, and didn't even look at it, then we may have something to work with. We'll have to scour the regs pertaining to evidence to figure that part out.

5. If they did receive it, and used it in making their decision without sending you any follow up DTA paperwork, then you may have to live with it as failure to follow DTA procedures doesn't constitute a CUE. If this is the case, just file for a increase.

My guess is that the appeal paperwork was either never received, or it was lost in the mail room, and therefore never came into play. If they had gotten it, you most likely would have gotten some follow up paperwork from them, and the process would have taked substantially longer.

Carlie is on vacation, but she has been checking in occassionally. She knows a lot about CUE claims, and will hopefully weigh in here. Berta is the resident expert on the DTA stuff, and I would like for her to give an opinion on taht aspect of this case, as well.

There are a few other regs in part 3 that come into play here as well. They depend on a few factors, though. Here's a few more questions for you:

1. How long had the reduced rating been in place?

2. What was the reduction based on (medical records, a C&P, multiple C&P's)?

Answer these and I'll start looking for the regs I'm talking about. I have an errand I have to take care of right now, though.

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  • HadIt.com Elder

Here is the reg I was talking about on the "stabilization of disability ratings":

38 CFR 3.344

(a) Examination reports indicating improvement. 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 Department of Veterans Affairs 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. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. 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. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. 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. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

( B) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination ——— months from this date, §3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

© Disabilities which are likely to improve. The provisions of paragraphs (a) and ( B) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

In a January 1995 decision, the USCAVC upheld this regulation:

Kitchens v. Brown

Edited by rentalguy1
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1. Get out the copies of the appeal paperwork that you sent to the RO to rebutt the proposed reduction, in include the USPS receipt where you mailed it certified mail, return receipt requested. Be sure that it was all in order.

2. IRIS the RO to be sure that they actually received that appeal paperwork. Don't call the 800#. If you use IRIS, and request an e-mail response, then you'll have a paper record of the event.

3. If they didn't receive it, you'll probably have to live with the decision and file for an increase to bring the rating back up.

4. If they did receive it, and didn't even look at it, then we may have something to work with. We'll have to scour the regs pertaining to evidence to figure that part out.

5. If they did receive it, and used it in making their decision without sending you any follow up DTA paperwork, then you may have to live with it as failure to follow DTA procedures doesn't constitute a CUE. If this is the case, just file for a increase.

My guess is that the appeal paperwork was either never received, or it was lost in the mail room, and therefore never came into play. If they had gotten it, you most likely would have gotten some follow up paperwork from them, and the process would have taked substantially longer.

Carlie is on vacation, but she has been checking in occassionally. She knows a lot about CUE claims, and will hopefully weigh in here. Berta is the resident expert on the DTA stuff, and I would like for her to give an opinion on taht aspect of this case, as well.

There are a few other regs in part 3 that come into play here as well. They depend on a few factors, though. Here's a few more questions for you:

1. How long had the reduced rating been in place?

2. What was the reduction based on (medical records, a C&P, multiple C&P's)?

Answer these and I'll start looking for the regs I'm talking about. I have an errand I have to take care of right now, though.

Rentalguy1,

I checked my C-file and the 21-4138 is in there. The claim assistant put his name on it and stamped it Mar 8, 2007. He also wrote on the form "appeal issue".

The reduced rate has been in effect 1 year on September 1st. It was based on a QTC exam.

I did not get a chance to present my information because I never received the hearing. I did not give any information with the 21-4138 I only request a hearing to present the facts and argue my case.

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