tdiu Problems With This Cue?

[EricHughes]

To Whom It May Concern:

Veteran is claiming that a “Clear and Unmistakable Error” was made in the August 24, 2001 rating decision. Specifically, a disability rating of 30% disabling for asthma was wrongly assigned. The correct rating for asthma should have been 60%. This CUE then triggered a series of events that prompted a subsequent CUE for a denial of individual unemployability in on August 4, 2004, and reduction in what should have been a protected rating of 60% for asthma down to 30% in 2011.

In 1999, to this day, a rating of 60% is warranted when an FEV-1 of 40-55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) course of systemic corticosteroids. [underlining added for emphasis]

Wherefore, the August 24, 2001 findings of facts state “He reported to the emergency room on three occasions for asthma attacks and received treatment numerous times for exacerbations.” From this statement of fact it is clear that the veteran’s active duty medical file was before the RO at the time of rating, and that the RO reviewed the associated medical records. What is also clear is that the RO failed to review the active duty doctor’s orders and active duty prescription records associated with these Emergency Department Admissions, as there is no mention of the presence or absence of corticosteroid usage.

On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes referring to the prescription of “Prednisone”, a corticosteroid. These clinical notes are June 24, 1999, June 7, 1999, and three dates that are illegible. Then on October 13, 2011 claimant also located within the same electronic C-file his active duty prescription records. They clearly show three separate prescriptions for Prednisone in the twelve month period directly prior the effective date of service connection for Asthma.

Drug

Prescription #

Order #

Doctor

Date

Prednisone

XXX

YYY

Arnold, Gerald

07 July 1999

Prednisone

XXX

YYY

Duffy, Tim

12 June 1999

Prednisone

XXX

YYY

Jaffe, Burton

12 April 1999

The above cited prescription records where before the RO in the August 2001 rating decision. But they where overlooked at the time of rating. The records can be located within the existing C-File. Copies are also attached to this claim for expediency at triage.

Then on August 4, 2004 the RO denied a TDIU claim on the grounds that the claimant failed to meet the required minimum disability-rating threshold of 70%. This failure to meet the minimum threshold requirement for TDIU was the only reason given for the denial of the TDIU claim in 2003. Had the RO correctly rated the claimant’s asthma on August 24, 2001 at the 60% level, the claimant would have indeed met the minimum-rating threshold for his TDIU claim. Then, based on evidence of record and in particular the RO’s failure to state cause for rejection on any grounds other than failure to meet the minimum rating threshold, TDIU should have been granted effective May 22, 2003.

Finally had the CUE of August 24, 2001 not occurred, the claimant’s asthma rating would have been protected at the 60% level starting September 21, 2009, and therefore not subject to reduction in 2011.

Wherefore, for the above-mentioned causes, claimant submits his claim for Clear and Unmistakable Error. He seeks the full sum of back pay due.

[broncovet]

The Veterans benefit manual explains this in a fair amount of detail. You see, your effective date wont be earlier than the date you submitted the N and M evidence UNLESS it is new SERVICE Records under 3.156 C. The VA likes to "stop reading" at 3.156 A, so no one ever reads 3.156 C.

[carlie]

Eric,

If you look in the Evidence section of your rating decision dated August 24,2001, I am positive you will see your SMR's listed as evidence

of record.

As you posted - the VA has ALREADY considered the 3 times Prednisone was RX'd on AD -

so NO - in this situation - personally I would not go with 38 CFR 3.156c.

This evidence WILL NOT fall under N&M under 3.156c, they will just deny it from the get-go under 3.156c.

As I posted earlier,

"The only way I can see a possibility of a CUE grant (and any support for it),

is if the VA takes another look at the Prednisone RX'd three times on AD

and applies it to the evidence of record, which I think they have kind of danced around on."

Here's a BVA decision that relates to some of the concerns I have on if the CUE will fly or not.

http://www.va.gov/vetapp04/Files3/0426724.txt

If two evaluations are potentially applicable, the higher

evaluation will be assigned if the disability picture more

nearly approximates the criteria required for that

evaluation; * * * (This part in blue - should be applied to your CUE)

otherwise, the lower rating will be assigned.

38 C.F.R. § 4.7.

After careful consideration of the

evidence, any reasonable doubt remaining will be resolved in

favor of the veteran. 38 C.F.R. § 4.3. While the veteran's

entire history is reviewed when making a disability

determination, 38 C.F.R. § 4.1, where service connection has

already been established, and increase in the disability

rating is at issue, it is the present level of the disability

that is of primary concern. Francisco v. Brown, 7 Vet. App.

55 (1994).

The new regulations that became effective on October 7, 1996

revised the schedular criteria for the rating of bronchial

asthma. See 38 C.F.R. § 4.97, Diagnostic Code 6602. The

revised criteria provide that a 60 percent is warranted when

there is a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of

40 to 55 percent, at least monthly visits to a physician for

required care of exacerbation, or intermittent (at least

three per year) courses of systemic (oral or parenteral)

corticosteroids. * * * My concern here is what is contained in SMR's

and the PEB/MEB (whichever it was) medical evidence, that shows a more

present level of the disabling condition.

I feel consideration should be given to the fact the 30% evaluation in this Rating Decision

was based on an original claim - so this alone may negate the issue of present level of the disability.

Keep in mind a claim for CUE must be filed very specifically.

JMHO

[john999]

There are two humps you have to get over in a CUE at least. These are the concepts of something being "undebatable" and "reasonable minds". Those are massive humps.

[EricHughes]

[john999]

I have been working on a CUE where the VA admits they did not consider medical evidence of record. That gets you into the ballpark of CUE but may not be the whole game. The Error must be one which would have undebatably altered the decision if it had been considered. "Reasonable Minds" (VA minds) decide if something is undebatable. If you are going to BCMR after 10 years you better hire a lawyer. You are in the time guide lines, but the BCMR is not the VA. No benefit of doubt. Guilty until proven innocent.

[carlie]

I feel consideration should be given to the fact the 30% evaluation in this Rating Decision

was based on an original claim - so this alone may negate the issue of present level of the disability.

Keep in mind a claim for CUE must be filed very specifically.

JMHO

Ah, I see. Then let me add some additional information into the mix....

The prednisone burst occurred during time period during which my file was before the MEB. The MEB rated me at 30% because they didn't have the prednisone rx on record. What likely happened at the VA is that they just looked at the DD 214 and the FEV and didn't look any farther. I -COULD- take the MEB decsion back to the BCMR, but as I was discharged in 1999 getting the matter before the BCMR may be difficult. But a final decision from the VA could open the BCMR route. This brings up the possibility of a very very rare second shot at a CUE.

Lets say that the CUE at the VA is denied based on the error of the MEB decision. That gives me grounds to go to the ABCMR and reopen the MEB rating of 30% "in the interest of justice". If the ABCMR grants the increase in rating, then the VA will be bound by 60% ruling effective the date of discharge. Under the "N and M SERVICE Records" rule. I'm in a sweat spot where two different administrative boards have jurisdiction over the same error.

Eric,

Man, no way I'd take them both on as I do not see any additional benefit the double fight would provide.

The ONLY way to get justice from VA is by getting money and benefits.

I would just stick with VA - CUE - the misapplication in applying the medical evidence of record specifically 3 X steroids within 12 month period -

to the 60% criteria for asthma - not the 30% that was awarded. - carlie

As for the BVA case Carly cites, I don't see the analogy. The case is a dispute over a 100% rating based on prednisone Rx.

But the 38 CFR Part 4 at the time made the 100% rating for asthma "optional", not mandatory.

Note the use of the phrase "Will be considered" for the 100% rating, and compare it to the "Is Warranted" phrase for the 60% rating.

Eric,

The case I posted was not for relevance of evaluation percentage.

The relevance of the BVA case,pertains to the regs, specifically 38 CFR

§ 4.1 Essentials of evaluative rating. and 4.7 - Higher of two evaluations.

Where I posted,

"I feel consideration should be given to the fact the 30% evaluation in this Rating Decision

was based on an original claim - so this alone may negate the issue of present level of the disability."

is in relation to your claim - NOT the BVA case. - carlie