hypertension Cue Re. Illegal Revocation Of Service Connection

[vaf]

I would like to hear your opinions on what I believe is a CUE committed at the VARO on a denial, which was upheld by a DRO review.

I helped a vet put in a claim for hypertension where the RO and the Board stated in past decisions that the vet suffered from that condition prior to discharge, but they rated it as part of another claim, not separately. The vet is currently involved in a Board appeal for a higher rating for the root condition that the Board remanded back to the VARO for further development.

We then asked the VARO if the hypertension should have been rated separately. In response, the VARO summarily denied the hypertension as service-connected, whether separately or as part of another condition. We didn't expect this response, because we sent in hard copies of the VARO's and Board's own prior decisions that acknowledged the condition existed prior to the vet's discharge. It sounded like they reviewed a different set of records than what were before the VARO and the Board in the past, it was that disconnected from the facts that were acknowledged in the rating decisions for the root condition that caused the hypertension in the first place.

We asked for a DRO review, stating that the denial constituted a clear and unmistakable error (CUE), based on the fact that the VARO discontinued service connection for hypertension, which the VARO and Board had previously acknowledged existed as part of a service connected root condition for the last 17 years. The statute in 38 CFR states that the VA cannot revoke service connection for a condition that has existed for ten years or more, unless the rating decision was awarded due to a fraudulent claim.

If the VA stated hypertension was secondary to another disability, but didn't rate hypertension separately, is it still considered service connected, even though it hasn't been given a separate rating?

We're arguing that, in this case, the statute that applies to the ten-year rule also applies to the vet's hypertension, and we still think it should have been rated separately. The vet didn't receive any due process, so we are arguing that the VARO committed a CUE. We again sent the VARO copies of its own previous acknowledgements, as well as the Board's, that hypertension existed prior to discharge, and was an outcome of the other rated condition.

We thought this was such an obvious error that the DRO would recognize this. We were wrong.

The DRO sent a cut and paste response of the prior denial, upholding that denial, which flew in the face of the VARO's and Board's past written acknowledgements. The DRO decision did not address the CUE, any of our arguments, or any of the evidence. It merely stated the usual stuff about no evidence existing in the service medical records, etc., which contradicted their previous statements.

The VARO sent the veteran a Form 9 to file a Board appeal. We copied the Board on the CUE appeal, because CUE's must be resolved at the agency level where the CUE occurred, which was at the VARO. We've asked the Board to send the CUE back to the VARO to correct. We are waiting to see what happens next.

Edited August 8, 2010 by vaf

[pacmanx1]

OK, I am not sure if I see a CUE. It sound like there is some confusion, so please help me understand. It sounds like a veteran was awarded service connection for a condition and hypertension was

previously acknowledged existed as part of a service connected root condition for the last 17 years.

So my question is, did the veteran ever have a rating for hypertension or did the VA include hypertension as a symptom/cause of the service connected condition? Edited August 8, 2010 by pacmanx1

[vaf]

OK, I am not sure if I see a CUE. It sound like there is some confusion, so please help me understand. It sounds like a veteran was awarded service connection for a condition and hypertension was. So my question is, did the veteran ever have a rating for hypertension or did the VA include hypertension as a symptom/cause of the service connected condition?

Hi, Pete.

The VARO and the Board acknowledged that hypertension existed as an outcome of an endocrine disorder which, in turn, caused hypothyroidism, and also by the use of depotestosterone and hydrocortisone, which are steroids used to treat the endorcrine disorder. The veteran never had a separate rating for hypertension, however, which is what we were trying to address. Also, doesn't the definition of a CUE include factual errors, including misstatements of the evidence that exists in the veteran's service medical records? In this case, the same VARO interpreted the same records to reach an opposite conclusion of the claimed condition than it previously reached to acknowledge its existence and, more importantly, it's causal relationship to a rated S/C condition. So, it's not just the ten year rule we're looking at, but also that aspect of the issue.

[carlie]

Also, doesn't the definition of a CUE include factual errors, including misstatements of the evidence that exists in the veteran's service medical records?

vaf,

Are the "misstatements" in regards to what was actually written in the SMR's.

OR

Are the "misstatements" something a decision maker took out of context and re-worded it on their own words,

thereby, no longer what is actually written in the SMR's.

Hope this makes sense.

[pacmanx1]

§ 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)

[vaf]

vaf,

Are the "misstatements" in regards to what was actually written in the SMR's.

OR

Are the "misstatements" something a decision maker took out of context and re-worded it on their own words,

thereby, no longer what is actually written in the SMR's.

Hope this makes sense.

It makes sense, Carlie. I'm going to put the two conflicting positions taken by the VA side by side, to better illustrate my point(and I'm taking this directly out of an NOD we filed after the DRO upheld the denial):

1) In a Board decision dated October 28, 2005, Docket No. 94-36 158A, Page 10, the Board stated, “First considering the period between August 1993 (the veteran's date of medical retirement) and April 1995, the Board notes that the veteran’s service medical records and post-service treatment records include blood pressure readings that may be considered elevated. For example, in July 1993, the veteran’s blood pressure reading was 143/87; in December 1994, it was 130/95; and in February 1995, it was 145/102. It appears, however, that the first actual diagnosis of hypertension was on April 17, 1995. During that same period of time, the veteran required daily hormone therapy and struggled with mild intellectual impairment…”

2) Several paragraphs later on Page 11, the Board stated, “In general, increased ratings cannot be assigned prior to the date that entitlement to the particular disability rating is shown… As indicated above, a rating of 60 percent under Diagnostic Code 7903 prior to the change in criteria effective June 1996 requires a showing of severe hypothyroidism with the same symptoms as pronounced disability, but less marked. Using this criteria, the RO increased the veteran’s rating to 60 percent upon a finding of hypertension effective April 1995. It appears, however, that the only difference in treatment for the residuals of the veteran’s pituitary gland tumor removal following April 1995 is the addition of medication to treat his high blood pressure, a symptom that was present before the diagnosis was made in April 1995."

3) Page 11, last paragraph, the Board stated, “Thus, when considering that the veteran’s symptomatology has been essentially consistent since his discharge from service, the Board finds that the assignment of the more favorable 60 percent evaluation should be assigned for the entire period in question. The RO found, and the Board agrees, that the presence of high blood pressure coupled with the daily need for hormone replacement therapy and cognitive limitations equates to severe hypothyroidism under the rating criteria in effect prior to June 1996.”

4) Under “Findings of Fact,”,#2, Page 4, the Board stated, “The residuals of a transsphenoidal hypophysectomy for a pituitary tumor resulted in severe disability as early as August 1993 based on the necessity of hormone replacement on a daily basis, high blood pressure, and sluggish mentality.

The VARO’s July 2, 2009 Rating Decision, however, contradicted the Board’s findings discussed above.

1) On Page 4, the VARO stated, “service treatment records were reviewed. The records are negative for complaint, treatment or diagnosis of hypertension.”

2) The DRO’s subsequent decision dated March 16, 2010, Page 17, states “… the etiology of hypertension appears to benign (sic) essential hypertension, which is a separate primary condition, and is not at least as likely as not caused by or the result of medications taken for service connected conditions and/or caused by the result of service connected conditions themselves. Therefore, there is no medical evidence linking hypertension to the service connected condition of status post transsphenoidal hypophysectomy for pituitary tumor.”

----------------------

We concluded the NOD by stating:

"Basis for CUE (Clear and Unmistakable Error)

38 CFR, §3.105(a) Revision of Decisions – Errors) provides grounds to re-open claims, and §20.1403 Rule 1403 (a) defines a “CUE” as “…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.”

I respectfully submit that the VARO has committed a CUE by

1) disregarding evidence that the VARO itself, as well as the Board, previously service connected hypertension as a secondary outcome of a service connected disability (but did not rate hypertension separately), based on the same set of service treatment records, and

2) Severing service connection, which has existed for 17 years, without any explanation, or following due process. 38 CFR 3.951 prevents severing service connection after ten years, unless it was awarded under fraudulent circumstances."

The VA initially rated the endocrine disorder at 30%, and we appealed it. They then raised it to 60% effective the date of the C & P exam. We appealed that for an earlier effective date back to initial date of claim. The Board, in the statement above, stated that even though hypertension was not formally diagnosed until April of 1995, it was present at the time the veteran left the military. Therefore, the Board retro'd the 60% rating for the endocrine disorder back to the initial date of claim which was August 1993. But the hypertension was not rated separately, it was rated as part of the endocrine disorder. We asked if it should have been rated separately, to which the VARO and the DRO denied service connection for hypertension altogether.

Edited August 8, 2010 by vaf

[vaf]

Thank you, Pete -- please take a look at my latest posting and tell me what you think, it's the "of fact or law" part that I'm trying to correlate with what happened in this case.

§ 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)