Factual Error

[Hoppy]

From Terrys decision, "the veterans has not sef forth allegatons of clear and unmistakable error, either of fact or law in teh".

Can a factual error be the basis of a CUE. I remember talking to my SO and told him something that I cannot remember and he said that there was a factual error. He immediately pulled out a statement in support of the claim and notified the RO of a factual error.

Lets say a claim was denied because the RO determined that the veteran was not treated for a skin disorder while on active duty. Many years later the SMR shows that the veteran was infact treated for a skin disorder. Might this be a factual error that would be sufficient for a CUE.

[Josh]

Hoppy,

It would seem on the surface to be a factual error I must say however, was the condition related to the claim? If it was, then it was a factual error

[Wings]

From Terrys decision, "the veterans has not sef forth allegatons of clear and unmistakable error, either of fact or law in teh".

Can a factual error be the basis of a CUE. I remember talking to my SO and told him something that I cannot remember and he said that there was a factual error. He immediately pulled out a statement in support of the claim and notified the RO of a factual error.

Lets say a claim was denied because the RO determined that the veteran was not treated for a skin disorder while on active duty. Many years later the SMR shows that the veteran was infact treated for a skin disorder. Might this be a factual error that would be sufficient for a CUE.

Precedent Opinions for 1989 to 2003

http://www1.va.gov/OGC/page.cfm?pg=2

PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004

Law on CUE

4.

A claim of CUE is a collateral attack on a final decision by a VA RO or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999).

Pursuant to 38 U.S.C. § 5109A(a), a RO decision is subject to revision on the grounds of CUE. See also 38 U.S.C. § 7111(a) (revision of Board decisions based on CUE).

"In order for there to be a valid claim of [CUE], 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." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc); 38 C.F.R. § 20.1403(a) (upheld in Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-97 (Fed. Cir 2000), cert. denied, 532 U.S. 973 (2001)).

CUE exists only when the error is outcome determinative, that is, the error manifestly changed the outcome of the claim decision. 38 C.F.R. § 20.1403(a) and©; Cook, 318 F.3d at 1344; Bustos, 179 F.3d at 1381; Disabled Am. Veterans, 234 F.3d at 696. "If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." 38 C.F.R. § 20.1403© (upheld in Disabled Am. Veterans, 234 F.3d at 697).

Disagreements about how the facts were weighed or evaluated and failures of the duty to assist cannot be CUE. 38 C.F.R. § 20.1403(d)(2) and (3) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision "has the same effect as if the decision had been made on the date of the prior decision," 38 U.S.C. §§ 5109A(b), 7111(b).

Edited May 23, 2006 by Wings

[Hoppy]

Wings,

It does not sound like a CUE. They had the info. They read it. However, they did not schedule a C&P that would have explained it to them. Failure to schedule a C&P sounds more like a faliure in the duty to assist.

I will have to find the decision. I have it somewhere. It is from 1970. I am sure it will show that they did have the SMR before them and read it. The report that eventually led to my service connection in 1999 was in the SMR. When I filed in 1970 I claimed two of the most common symptoms. Intestional irritation and a skin condition. However I did not specify a name of the skin condition. I guess the adjudicator did not understand the relationship between angioedema/allergic edema and a skin conditon that left scarring . When I filed in 1999 I called it angioedema. Angioedema is a skin condition that can leave scarring. In 1970 the adjudicator did not make the association between angioedema and a skin condition and determined that I was not treated for a skin condition. At the time I did not know that angioedema was a skin condition. The disease can effect some many different parts of the body with such varied symptoms that I did not really understand what was going on. Any physician would know that allergic reactions are basically a skin condition. I have been told the angio refers to skin and edema refers to swelling. Thus, swelling of the skin is the derived from the word itself.

Thanks for all the info.

[Wings]

Wings,

It does not sound like a CUE. They had the info. They read it. However, they did not schedule a C&P that would have explained it to them. Failure to schedule a C&P sounds more like a faliure in the duty to assist.

Hoppy, Failure of Duty to Assist, thus far, has never risen to the level of CUE. Hasn't been done so far. See

In Cook v. Principi, 318 F.3d 1334, 1338-

41 (Fed. Cir. 2002), the Federal Circuit, sitting

en banc, overruled the “grave procedural

error” doctrine recognized in Hayre v. West,

188 F.3d 1327 (Fed. Cir. 1999). The Federal

Circuit held that a breach of the duty to assist

does not vitiate the finality of a VA decision.

The Federal Circuit also reaffirmed its

holdings in Hayre and Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001), that a breach

of the duty to assist cannot constitute clear

and unmistakable error (CUE).

I will have to find the decision. I have it somewhere. It is from 1970. I am sure it will show that they did have the SMR before them and read it. The report that eventually led to my service connection in 1999 was in the SMR.

Hoppy, I think what you may be looking at is a Claim for "Earler Effective Date"?!

When I filed in 1970, I claimed two of the most common symptoms: Intestional Irritation and Skin Condition. However, I did not specify a name of the skin condition. I guess the adjudicator did not understand the relationship between Angioedema/Allergic Edema and a skin conditon that left scarring.

Hoppy, do your Service Medical Records (SMR's) show a diagnosis of, or treatment for "Angioedema", "Allergic Edema" or "Skin Condition"?

When I filed in 1999, I claimed Angioedema. Angioedema is a skin condition that can leave scarring.

In 1970, the adjudicator did not make the association between angioedema and a skin condition - and determined that I was not treated for a skin condition. At the time, I did not know that Angioedema was a skin condition. The disease can affect many different parts of the body with such varied symptoms that I did not really understand what was going on. Any physician would know that allergic reactions are basically a skin condition. I have been told the Angio refers to skin and Edema refers to swelling. Thus, swelling of the skin is the derived from the word itself.

Thanks for all the info.

[Hoppy]

Adora,

Yes, one of the many symptoms caused by this disease is nasal obstruction. For twenty years after discharge about half of my doctors visits called the disease "allergic edema" and the other half "angioedema". The same symptoms with different names.

When I got my SMR in 1996 there was a report from an ENT doctor I saw two weeks before my discharge. The symptoms listed were nasal obstruction due to "allergic edema". The treatment prescribed was the same medications that were prescribed to this day. The varied symptoms made it difficult for me to make the association and I did not list the nasal obstruction on the 1970 claim for intestional symptoms and a skin condition. Skin is every where. It is on the outside of your body. It is in your intestines and your nose etc.

The reason I was service connected in 1999 was because I got the head of immunology and allergy to review the SMR and about 15 post service reports with both diagnoses. He wrote a note in my file that I have only one disease called angioedema. He said the disease onset while serving in the armed forces and has no known cure. The doctor was board cerftified for thirty years.

By the way I have not read any responses to my post about VSO's. I mentioned that I thought that the VA beeded to relax it's CUE laws. I plan to continue with another post as to what and why I think the VA should allow CUES for failure for duty to assist. It will be lengthly and I will really dig into the reasons that such flexibility is required by medical principals and fair and non arbitrary laws. I will also continue to attack what I consider a non adversarial system that has had a long history of being inadaquate. As citizens of this great country we do have constitutional protections from unfair and arbitrary laws. It will probably take me another 2 to 5 days to type it up. I might go out of town for the weekend.

Once again thanks for the info.

[Wings]

Adora,

Yes, one of the many symptoms caused by this disease is nasal obstruction. For twenty years after discharge about half of my doctors visits called the disease "allergic edema" and the other half "angioedema". The same symptoms with different names.

When I got my SMR in 1996 there was a report from an ENT doctor I saw two weeks before my discharge. The symptoms listed were nasal obstruction due to "allergic edema". The treatment prescribed was the same medications that were prescribed to this day. The varied symptoms made it difficult for me to make the association and I did not list the nasal obstruction on the 1970 claim for intestional symptoms and a skin condition. Skin is every where. It is on the outside of your body. It is in your intestines and your nose etc.

The reason I was service connected in 1999 was because I got the head of immunology and allergy to review the SMR and about 15 post service reports with both diagnoses. He wrote a note in my file that I have only one disease called angioedema. He said the disease onset while serving in the armed forces and has no known cure. The doctor was board cerftified for thirty years.

By the way I have not read any responses to my post about VSO's. I mentioned that I thought that the VA beeded to relax it's CUE laws. I plan to continue with another post as to what and why I think the VA should allow CUES for failure for duty to assist. It will be lengthly and I will really dig into the reasons that such flexibility is required by medical principals and fair and non arbitrary laws. I will also continue to attack what I consider a non adversarial system that has had a long history of being inadaquate. As citizens of this great country we do have constitutional protections from unfair and arbitrary laws. It will probably take me another 2 to 5 days to type it up. I might go out of town for the weekend.

Once again thanks for the info.

Hoppy, I totally support your opinion! I'll do what I can to help. ~Wings

I would begin with a relaxed study of the decisions/case law found in

1) Hayre v West (1999), http://www.ll.georgetown.edu/federal/judic...ns/98-7046.html

Hayre's was a good decision, great decision - but was over-ruled when they decided Cook.

2) Cook v Principi (2001), http://www.ll.georgetown.edu/federal/judic...ns/00-7171.html

Read the single dissenting opinion in Cook:

MAYER, Chief Judge, dissenting.

In my view, a breach of the duty to assist the veteran by failing to provide a proper medical examination vitiates the prior decision of the Regional Office for the purpose of direct appeal. A duty to assist is an integral part of the claimant friendly, non-adversarial claims adjudication process of the Department of Veterans Affairs (VA). A breach of this critical duty compels us to create a judicial remedy tolling the finality of VA decisions for the purpose of appeal. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). This ensures that the VA’s duty to assist claimants does not become a hollow slogan. Id.

Congress expressly stated that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” H.R. Rep. No. 100-963 at 13, reprinted in 1988 U.S.C.C.A.N. 5782, 5795. In Hayre, we concluded that the VA breached its duty to assist when it failed to inform the veteran that it was unable to obtain pertinent service medical records the veteran had requested. 188 F.3d at 1334. But the VA’s duty to assist is not limited to obtaining medical or other government maintained records; it includes providing a thorough medical examination when necessary to develop the veteran’s claim. Id. at 1332.

Hayre described the specific actions of the VA as a “grave procedural error” that required tolling the finality of the Regional Office’s decision. Id. at 1333. It was not, however, limited to only grave procedural errors. The results of a veteran’s medical examination are often the determinative factor in the claim adjudication process. An insufficient examination may serve to breach the VA’s duty to assist the veteran in fully developing his claim. Therefore, administering an improper medical exam has as important an effect on the proper resolution of a veteran’s claim as a failure to inform the veteran that the VA was unable to obtain medical records. A veteran must rely upon the VA for a thorough medical examination just as he must rely upon the department to locate service medical records. Just as he must be able to assume, absent notice to the contrary, that the VA located and based its claim determination on the requested medical records, the veteran should be able to assume that the VA performed a thorough medical examination.

I would reverse the judgment of the Court of Appeals for Veterans Affairs.