Cue Granted In 208 At Bva

[Berta]

http://www.va.gov/vetapp08/files3/0820604.txt

ORDER

Clear and unmistakable error in the February 1946 rating

decision having been shown, a 30 percent rating for the

residuals of shell fragment wounds of the left forearm is

warranted from December 14, 1945.

The vet only went from 20 to 30 % but still this is quite a case and it shows how improperly application of the Rating schedule,in light of the medical evidence at hand, can warrant a clear and unmistakable error.

Medical evidence has to be established for most if not all CUE claims. It is when they start to use the Rating schedules and apply the DCs that many CUEs could occur.

It is in this way that the CUE is based on a legal error (use of 38 CFR) rather than any error in medical determination-which would not be a basis for CUE.

[Lemuel]

On ‎1‎/‎6‎/‎2009 at 8:08 PM, carlie said:

Here are some more granted CUE Claims for research.

Hope one helps a vet.

carlie

 

Thanks Carlie.  This will be very helpful to me.  I have a remand being processed and I'm sure it will come back to the BVA because the proper TBI examination isn't being done.  2.5 hours of neuropsychological testing period.  Not the several sessions done in protocol on two previous assessments.  And the previous assessments, except for one done in 2015 not in protocol showed no improvement.  The 2015 exam caught me on a good day well rested and no partial or complex partial seizures.

The two cases I've read so far are exactly what I need.  I'm going through all of them.  I thank you from the bottom of my heart.

[Lemuel]

On ‎1‎/‎6‎/‎2009 at 5:31 PM, Wings said:

 

I wish I had a grip on that part of the regulation, John, but their verbage is so damn vague that my CUE claim was centered on the application of the law, rather than medical evidence. I'm sure Berta will be able to weigh in on this part. ~Wings

SMRs not requested are evidence for CUE.  I have that situation but I don't have the citation I used in 1985 at the DRO level.  I was granted the SC but not the CUE because I hadn't requested it so I was only rated from my 1984 Claim.  I'm now trying to re-date to my claim for residuals of a head injury because though the RO requested the information in deciding my 1974 claim he didn't wait for it.

From carlie's post above there are BVA decisions, some from CAVC remands that bring this into evidence.  Just downloaded all of her citations for my use.  Will also get the CAVC references.

The thing that bugs me is I went for 40 years in a mental state I couldn't do my adjudication effort effectively.  I'm now on a seizure medication and am more employable than I was during that adjudication which granted me 0% but SC.  I have a 4,529 page RBA before the CAVC at the moment but only for tinnitus date revision which looks like a slam dunk.  The SMR has an EENT Consult, 9 years before my discharge with noise trauma tinnitus causing me to fail a Navy fork lift operators examination.  My tinnitus was rated from December of 1989.  I'm asking for a revision because of the error of not rating my tinnitus at 0% in the February 1976 RO decision and then granting me the "liberalized" date of March 1976 on the liberalization granting 10% for noise trauma as well as TBI.  My tinnitus predates my TBI so I couldn't claim it as from the TBI and get 10% from my discharge date.

I'll post how it comes out when I get a decision.  It is now at the RO level on CUE in development.

In my CUE claims I have both the SMR that was ignored and SMR in patient records that were available but not considered being used again for SC of atonic, partial and complex partial seizures.  Nursing notes in the IPTR show two episodes of probable complex partial seizures with an intake diagnosis of "post concussion syndrome" which were not included in the discharge Narrative Summary as well as the severity of the TBI, 50 hours of unconsciousness with an additional 30 hours of amnesia.  As a consequence my claim for "residuals of my facial fracture" were not fully evaluated.

I also have an 1151 claim for 5 month treatment with a medication known to make atonic, partial and complex partial seizures worse followed by a diagnosis of pseudo seizures both in development at the RO level and at the district court (DCWD) following an administrative claim.  I'll be uploading my current status on my thread on the subject (click on my L to get there) as soon as the Judge renders a decision on the U S Attorney's motion to dismiss and my rebuttal citing Bivens and Citizens United, Supreme Court decisions on erosion of rights as well as the 5th Amendment, Due Process (denial of evidence by the Medical Division) and Section 4 of the 14th Amendment guaranteeing U S debts including warrants and bounties to servicemen.

[Wings]

http://www.va.gov/vetapp08/files3/0820604.txt

ORDER

Clear and unmistakable error in the February 1946 rating

decision having been shown, a 30 percent rating for the

residuals of shell fragment wounds of the left forearm is

warranted from December 14, 1945.

The vet only went from 20 to 30 % but still this is quite a case and it shows how improperly application of the Rating schedule,in light of the medical evidence at hand, can warrant a clear and unmistakable error.

Medical evidence has to be established for most if not all CUE claims. It is when they start to use the Rating schedules and apply the DCs that many CUEs could occur.

It is in this way that the CUE is based on a legal error (use of 38 CFR) rather than any error in medical determination-which would not be a basis for CUE.

Good win!! Thanks Berta !!

Under the provisions of 38 C.F.R. § 3.105(a), previous

determinations that are final and binding, including

decisions of the assignment of disability ratings, will be

accepted as correct in the absence of clear and unmistakable

error. In order for a claim of CUE to be valid, there must

have been an error in the prior adjudication of the claim;

either the correct facts, as they were known at the time,

were not before the adjudicator or the statutory or

regulatory provisions extant at the time were incorrectly

applied.

[john999]

Wings

When you say that a cue can occur when the correct facts that were known at the time were not in front of the adjudicator can you give me some examples of what that means? Does that mean that records or facts that should have been considered were not considered such as SMR's or medical reports? What does the VA mean by "facts"? If VA ignored SMR's when they made a decision is that a CUE?

[Wings]

Wings

When you say that a cue can occur when the correct facts that were known at the time were not in front of the adjudicator can you give me some examples of what that means? Does that mean that records or facts that should have been considered were not considered such as SMR's or medical reports? What does the VA mean by "facts"? If VA ignored SMR's when they made a decision is that a CUE?

I wish I had a grip on that part of the regulation, John, but their verbage is so damn vague that my CUE claim was centered on the application of the law, rather than medical evidence. I'm sure Berta will be able to weigh in on this part. ~Wings

[jbasser]

I can see it clearly. If they mis apply the rating schedule it is a cue. They still do it every day and try to get away with it by how the evidence is evaluated.

J