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.

[jbasser]

Eric, what was your DLCO reading in 99?

J

[EricHughes]

Eric, what was your DLCO reading in 99?

J

No DLCO test was performed.

[EricHughes]

Eric,

Ok, that makes more sense now.and I can comment on the claim.

The rater is supposed to see the big picture as to your medical condition when adjudicating your claim. Their reasons for the award of 30% were spelled out pretty clearly from what I read in your posts. The criteria for the higher rating was not met in their decision and if you look at the alternative criteria for treatments it specifies at least three as a bare minimum. The VA likes to see supporting evidence in addition to just one requirement being met. This is similar to a vet with PTSD and receiving a GAF score of 30, but only being awarded a 50% rating. The GAF score is but one element. I realize what the regulation states as warranted, but there again it is up to the rater to add up all the evidence to see the big picture. Then if it fits into the category you will be awarded the higher rating.

NSA-Saigon-ET

In 2004 I won a 60% rating for asthma using my prescription record at the DRO level using a format very similar to this one. While I understand that the VA likes to see more evidence at the RO level, such rating behavior is Capricious under the law.

[carlie]

In 2004 I won a 60% rating for asthma using my prescription record at the DRO level using a format very similar to this one.

While I understand that the VA likes to see more evidence at the RO level, such rating behavior is Capricious under the law.

Eric,

Now I'm really confused, as your prior post states,

Posted&do=embed' frameborder='0' data-embedContent> 16 October 2011 - 05:47 PM

"I am currently service connected for Sleep Apnea @ 50%, Asthma @ 30%, Degenerative Disk Disease @ 20%, Throatic Strain @ 20%,

Largeopharangial Reflux at 30%? (from memory), Mood Disorder 10%, PTSD 0%".

I guess this comes into play in regards to where you mentioned a "reduction"

"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."

Just so I'm clear - the claim for CUE is based solely on the AD 3 X prednisone RX and has

nothing to do with PFT's and/or FEV's.

I think I've done all I can on this topic.

[EricHughes]

Eric,

Now I'm really confused, as your prior post states,

16 October 2011 - 05:47 PM

"I am currently service connected for Sleep Apnea @ 50%, Asthma @ 30%, Degenerative Disk Disease @ 20%, Throatic Strain @ 20%,

Never mind, thanks for everyone's help. Obviously this is more confusing than it needs to be absent everyone having a copy of all rating decisions.

[john999]

I can tell you that if evidence is part of the record and the VA ignores or excludes that particular evidence in their rating decision that is a basis for a CUE. It is not the whole ball game since the evidence excluded must be of such nature that it would undebatable change the outcome of a decision. If evidence of record is not listed or mentioned than it was not used in the rating. The BVA admitted that in my CUE. The VA cannot cherry pick which evidence it will use and which it will not use. If they could no claims would ever be granted.

Eric

Your case is hard to follow. If it is hard for us to follow here I think the VA will just stamp it "denied" and send it back to you. Hire a lawyer. Unless it is something like "you lost a foot in Vietnam. The VA says it was your arm you lost" you need help from a legal mind.