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Cue Re. Illegal Revocation Of Service Connection

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vaf

Question

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 by vaf
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Did the veteran have a C & P exam for hypertension? What was the outcome? An IMO of the veterans' hypertension may help. The DRO in claiming that the veterans' hypertension is due to age and not caused by any medication or the service connected condition.

Edited by pacmanx1
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Did the veteran have a C & P exam for hypertension? What was the outcome? An IMO of the veterans' hypertension may help. The DRO in claiming that the veterans' hypertension is due to age and not caused by any medication or the service connected condition.

He had a C & P that formally diagnosed hypertension in April 1995, although the symptoms were on record in his service medical records, as well as VA medical records, prior to that date. That exam was the basis for the VA's rating the root condition of the endocrine disorder at 60% effective April 1995. We appealed that effective date, because the veteran's service and VA medical records showed that the hypertension was present at the initial date of claim, which was August 1993. The veteran didn't realize at the time that perhaps the hypertension should have been rated separately, and not merely rolled into the rating for the endocrine disorder. The veteran made that inquiry in August 2005, and waited until last year to get an answer, which was to summarily deny service connection for hypertension.

The veteran has been treated for his hypertension for the last seven years by a non-VA board certified internal medicine physician, and the VARO has those records, along with the veteran's history of the meds he takes to control it. We're not arguing the fact that the hypertension is there, we're arguing the fact that the VA first says its service connected, but doesn't rate it separately, and then states that it's not service connected, that it's "essential hypertension," which means it's of unknown origin. They know where it came from, they stated so in a prior decision. There's a disconnect there. The reason this matters has everything to do with DIC, should that become an issue in the future.

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My prior posting that discusses the statements by the Board reflect that the Board believed the veteran's endocrine disorder and hypothyroidism caused the hypertension. Then, to contradict the Board, the VARO/DRO later stated that the veteran's age was the cause, unrelated to the service connected disorder.

To my mind, that would mean either the VARO is wrong now, or the Board was wrong before. Either way, the VARO didn't address the CUE by providing evidence or rationale, or any discussion that directly addressed the Board's statements in its previous decision. It just basically said we find it to be unrelated to service, and that's that. Take it to the Board if you disagree.

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Did the veteran ever get an IMO stating that the doctor has reviewed his SMRs and has treated him for several years and it is his medical opinion that his hypertension is directly related to his service or his service connected disability?

Edited by pacmanx1
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  • Moderator
My prior posting that discusses the statements by the Board reflect that the Board believed the veteran's endocrine disorder and hypothyroidism caused the hypertension. Then, to contradict the Board, the VARO/DRO later stated that the veteran's age was the cause, unrelated to the service connected disorder.

To my mind, that would mean either the VARO is wrong now, or the Board was wrong before. Either way, the VARO didn't address the CUE by providing evidence or rationale, or any discussion that directly addressed the Board's statements in its previous decision. It just basically said we find it to be unrelated to service, and that's that. Take it to the Board if you disagree.

If this is the case and the file is going back to BVA, then it would better if BVA awards the veterans' claim for hypertension and the VARO would have to comply

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Given the fact that the RO did err, then the BVA will most likely remand it back to the RO. You need to get an attorney.

J

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