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Question
Guest Berta
As you might recall one of my present CUES involves the lack of proper diagnositc codes regarding my husband's heart disease.
Although the VA , in spite of documented evidence of this disability which caused his death, never gave him any diagnostic code in old SOCs because they never diagnosed it-
but they had received from VACO prior to the last SOC, full admission from VA as to his heart disease and their lack of proper treatment of it-
I re-opened my claim for DMII ,CAD and CVA due to direct SC (AO) and filed a CUE on the lack of entitlement to SMC in the final VA decision of 1998,even though OG pre op says he should have been awarded posthumous SMC for all of above,under Sec 1151 (and also they have to pay this under Nehmer as direct SMC) when my present AO claim succeeds.
(I heard decision is close)
OK- the CUE I filed on the lack of diagnostic codes on the CAD (heart disease)as well as wrong codes for his strokes----I think I need to explain this facet of CUE because it might sure help someone.
Although I have stated before that CUE does not involve medical opinion, or weighing of medical evidence, or medical errors in a final VA or BVA decision -this is how that can be circumvented-
if the VA in a final decision assigned an improper rating due to improper diagnostic codes used, since the diagnostic codes and rating schedules are part of the regulations, then this becomes basis for CUE as failure to apply or follow a pertinent regulation.
In Bentley V Derwinski the 1960 rating decision had assigned 40% for service connected arteriovenous aneurysm with cardia involvement.
The CAVC (think it was COVA then) stated that the decision was "clearly and unmistakably erroneous in view of the contemporaneous medical evidence clearly
establishing that the veteran had a the condition and the diagnostic criteria required assignment of a minimum rating of 60%."
I hope that came out highlighted -
My long point here is that although a CUE cannot involve a medical determination as to disability or extent thereof
-if the diagnostic codes are wrong in a final VA decision, and the proper code for that time of decision is supported by medical evidence on file at time of that decision,
and the proper code would reflect a higher rating- that is a basis for a CUE claim.
I had final VA decision- 'the veteran was not eligible for consideration of SMC under any circumstance.'
The medical evidence that VA has shows 100% SC PTSD, 100% CVA under 1151, 100% CVA under Nehmer direct SC(AO), 100% heart disease under Sec 1151 and also 100% CAD due to AO causing the veteran's death. from 1988 to Rod's death in 1994.
My long point here for the legal beagles out there is that an improper rating code in a final VA decision can be basis for CUE and worth considering if you think you have received an improper final decision.
Bentley V Derwinski (I only have synopsis of this case) but the CAVC reversed a BVA decision as to CUE within a final 1960 rating due to the wrong diagnostic criteria.
In Myler V Derwinski- this might help someone too- the veteran had suffered a clean GSW, appearing to cause very little residual damage.In 1953 the VA found that the gun show wound caused no disability. I have a Nam frined who also had GSW that went right through his arm,left scarring, but he never wanted to file a claim as he felt no disability occurred. But he got a PH.
The CAVC in Myler held that the gun shot went through muscle group XIII and clearly was a disability that required a rating. This was a CUE claim showing that the VA had "failed to assign a disability rating that was required by the undisputed evidence of record". Another way to find VA misapplied their own regs and laws and this bacame the valid basis of a CUE claim.
Berta
Edited by BertaLink to comment
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Guest Berta
As you might recall one of my present CUES involves the lack of proper diagnositc codes regarding my husband's heart disease. Although the VA , in spite of documented evidence of this disability whic
Guest Berta
Pearl- since this is still an active claim, it cant be cued. But I sure would hope they give you not only the right code and rating but they would consider how far back this was in error and then pay
carlie
Berta, Can you post the url for Myler v Derwinski, I can't find it at CAVC. Thanks, carlie
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