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

[sharon]

As they used the hypertention to increase the endocrine disorder :

4.14 - Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

Read more: http://cfr.vlex.com/...9#ixzz0w4OGuhI1

Edited August 9, 2010 by sharon

[vaf]

Thank you, all!

The pyramiding issue would address the question of whether it should or shouldn't be rated separately, but still leaves me wondering about the total severance of service connection for hypertension, despite the fact that the VARO and the Board previously acknowledged it existed prior to separation.

Playing devil's advocate for a moment, please tell me what you think the weakness in that argument would be that would jeopardize our belief the ten year rule applies here.

It's difficult to find an attorney willing to tackle a CUE, unless there are other more lucrative issues that co-exist with it. We were questioning whether the hypertension should have been rated separately, but now we're fighting a battle for service connection for it in any capacity.

As they used the hypertention to increase the endocrine disorder :

4.14 - Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

Read more: http://cfr.vlex.com/...9#ixzz0w4OGuhI1

[mrsvet28]

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.

I am not sure if this will help you but here is what happened to us with hypertension:

Under the BVA remand there were four issues PTSD,hypertension, IU, and Leg injury- that was in 2008

For some reason the VA separated the issues and hypertension was the one separated even though the remand stated "that a 50 or greater diagnosis was need to establish a connection to the PTSD-and they ordered a CP exam which was favorable to my husband/ but we never knew the issues were separated, and neither did our attorney-

When the final decision camefor 100% it only listed three issues, and the hypertension came with it in a SSOC letter as a separate issue

When I checked "this action satisfies the appeal on all issues" which hypertension wasnt listed- they droppped the hypertension anyway

they all said I had to reopen the claim again- I explained that the hypertension was dropped before the BVA even had time to get the CP exam which was remanded by them

I spoke to four different people who said pretty much the same thing-that it would have to be reopened-I had worked on this for over 11 years of alot of stress!

I didnt know what to do-but I refused to reopen it again- I proved them wrong and got the decision it was favorable- IT WAS NEVER CLOSED -

MAYBE THAT MIGHT HELP- I BELIEVE THAT WAS A CUE

[Berta]

"I spoke to four different people who said pretty much the same thing-that it would have to be reopened-I had worked on this for over 11 years of alot of stress!

I didnt know what to do-but I refused to reopen it again- I proved them wrong and got the decision it was favorable- IT WAS NEVER CLOSED -

MAYBE THAT MIGHT HELP- I BELIEVE THAT WAS A CUE"

I dont understand this- the HBP claim was favorably resolved? and with the proper EED?

* +

* -

In the prior post :

"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."

One thing I did a few months ago (because the VARO failed to consider any of my legal evidence for a CUE claim I filed in July 2004)

is to write to them and tell them emphatically that the CUE could NOT be sent to the BVA until they corrected their errors in their SSOC and also considered my legal evidence.

I stated that a I-8 could not possibly be prepared (the I-8 is their BVA transfer check list) since they failed to do what the I-8 requires.

I no longer have some vet rep to file a 646, (sanctioning any erroneous I-8) so they have to deal directly with me.

I was prompted to send them this letter when the 800 # told me about 2 months ago that the CUE was set for BVA transfer.

I received no BVA transfer letter however and the CUE was re assigned early Aug to someone else at the VARO and then the CUE claim was suddenly pulled recently and sent to Phila Nehmer people because someone at the VARO caught the fact this was a CUE on lack of rating of IHD.

In any event-

it ticks me off that these ROs and their copy and paste DROs get away with not doing their jobs and then they check yes to questions on the I-8 transfer sheet when the reality is their answers should be No.

And the real tick off is when a vet rep who is supposed to be looking out for our interests as claimants, will file a 646 in spite of an inaccurate I-8,condoning that the case is ready for BVA transfer when the reality is, the RO has not done their job at all.

I could have gotten a faster decision on my past claim from the BVA but kept at them at the R0 level because I thought they would eventually read my evidence for both of my claims. I was wrong.

The BVA referred to one of my statements asking for an immediate remand and I gave reason why and the BVA stated I was correct. The remand was due to errors that the RO failed to correct.When VA got the case back, my evidence Still remained unacknowledged (this was for my AO death claim)and the BVA awarded.

[Berta]

PS this might help someone out there-

On my I-9 for my AO death claim,and CUE claim I inserted the wording NVLSP suggests:

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

(I stuck it into the Hearing info area because there really isnt much room on the I-9 form).

And I immediately stated at the bottom where they ask why the decision is wrong- how my rights were violated and how they failed to honor the VCAA etc etc for the AO claim and refused to read my evidence which I again attached with an evidence list.These were errors and violations of basic VA tenets that were prejudicial to my claim which the BVA could not overlook.

[jbasser]

If the VA mis applies the regs and the claim is final. then a Cue has been committed.

If they dont follow the Part 3 and Part 4, then it is a legal error. for example. Hypertension. If Hypertension is found to be related to service and is evident in service then service connection must be granted. Direct service connection. Presumptive within 1 year is a different issue as the rating must be compensable or the BP must predominantly 160 / 100 either or.

If Hypertension is secondaqry to heart diseas, the regs clearly state to rate is separately.

Sounds like the original rating was wrong to begin with

Like I said before, this claim needs an attorney.

J