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.

[EricHughes]

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.

Does this clear things up? Or have I simply confused everybody beyond recovery?

To Whom It May Concern:

Veteran claims a Clear and Unmistakable Error was made on August 24, 2001, and August 4, 2004 rating decisions for benefits.

Nature of the Error:

In the spring of 1999, veteran was on active duty with the US Army and was referred to the MEB for separation due to asthma that was incurred in the line of duty. After the veteran’s file was referred to the MEB, but before his discharge from service, veteran was treated numerous times for exacerbation of his asthma. This included five trips to the Ft. Bragg Emergency Department including one hospitalization for acute asthma. Each time he was prescribed Prednisone, a corticosteroid. Records of the ED trips or the hospitalization where not brought before the MEB. Veteran was medically retired on September 21, 2001 with MEB awarded asthma rating of 30% absent information regarding his intermittent need for Corticosteroids.

Just 18 days after separation, on October 6 1999, veteran filed for Service Connection for his asthma and a few other uncontested conditions. It took the VA until August 24, 2001 to render a decision on this original claim for disability. At that time the VA awarded SC for incurred asthma rated at 30% disabling. Even though the MEB rated the veteran at 30% disabling by the Army MEB, claimant contends VA should have Service Connected the veteran at 60% disabling for asthma effective September 22, 1999 based upon the Service Medical Records generated after the veteran was referred to the MEB.

On November 15, 1999 veteran responded to a letter from VA asking for clarification of what disabilities he was claiming. He submitted a VA Form 21-4138, Statement in Support of Claim, with an attached letter of explanation. It is in the C-File and date stamped “Received” November 22, 1999. In the statement in support of claim veteran specifically drew attention to his prednisone prescriptions. However, this Form 21-4138 was not listed as evidence before the RO in the rating decision.

Subsequently claimant requested an award for TDIU on May 22, 2003. Claimant’s request for TDIU was denied based solely on his failure to meet the minimum service connected disability requirements set forth by 38 CFR 4.16. However, if he had been awarded the correct rating of 60% for asthma in his original claim, the August 4, 2004 outcome of the May 22, 2003 request for benefits would have been manifestly different.

Standard of Review

The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

CUE in August 24, 2001 decision:

Element 1(a)i: Facts as they where known at the time:

On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes in the Service Medical Record referring to the prescription of “Prednisone”, a corticosteroid for treatment of his SC Asthma condition. 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 his electronic C-File active duty prescription records. They clearly show three separate prescriptions for Prednisone in the active duty period twelve months directly prior the effective date of service connection for Asthma and also the date of separation from active service.

Drug

Prescription #

Order #

Doctor

Date

Prednisone

M114701254

990707-05953

Arnold, Gerald

07 July 1999

Prednisone

M11647567

990612-00420

Duffy, Tim

12 June 1999

Prednisone

M11586932

990412-02520

Jaffe, Burton

12 April 1999

Veteran reported two additional prednisone bursts prescribed by Womack Army Medical Center at Ft. Bragg but the substantiating prescription records have been lost from the SMR.

Element 1(a)ii Facts as they were before the adjudicator

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.” Absent from the discussion of facts is the claimant’s prescription record for Prednisone. Also absent from the list of evidence is the veteran’s November 15, 1999 Statement in Support of Claim.

Element 2(a) Undebateable Error:

The absence of this significant fact, from the reasons and basis discussion for the asthma disability rating is undebateable. Also undebateable is the absence of the veteran’s Statement in Support of Claim -that high lights his prednisone bursts- from the evidence of record.

Element 2(b) Manifest Difference:

In 2001, 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] Note the use of the term “Is warranted” as opposed to the term “Will be considered” used at the 100% rating level. Unlike the latter, the former indicates a non-optional disability award when the conditions are met.

Element 3: Compliance with law at time of error:

In developing the case, it is essential to obtain medical findings that are stated in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). By failing to include within the discussion of facts, the veteran’s need and usage of corticosteroid bursts in the twelve months prior to separation from service/effective date of disability, the RO failed to comply with caselaw as it existed at the time of error.

CUE in August 4, 2004 decision

Element 1(a)i Facts as they where known at the time

For the reasons detailed above, the facts at the time of the August 4, 2004 rating decision was that the veteran was using prednisone or another corticosteroid to control his asthma condition an average of three times per year. This should have been sufficient to grant a disability rating for asthma of 60%.

Element 1(a)ii Facts as they where known to the adjudicator

The adjudicator cites no facts regarding the veterans TDIU claim other than the lack of either a single 60% disability rating, or two 40% disability ratings with a net disability rating total of 70% or more as required by 38 CFR 4.16

Element 2(a) Undebateable Error:

Denial of the veteran’s TDIU claim on the basis that the veteran did not meet the minimum disability rating standards set fourth in 38 CFR 4.16 is only valid to the extent that the history of the veteran’s disability is valid. The medical opinion shall be rejected when the history upon which it is based in inaccurate. Swann v Brown 5 Vet. App. 229 (1993). In this case the RO’s August 4, 2004 error was predicated upon the above detailed factual error within the record.

Element 2(b) Manifest Difference:

The decision to grant or deny a request for TDIU is an all or nothing decision that carries with it an implicit manifest difference in outcome.

Element 3 Compliance with law at time of error:

This is an error of pure fact, not an error of law. The facts before the adjudicator where inaccurate. The error of fact having been corrected in the record, demands a change in outcome.

Additional Considerations

Within the Official VA Claim File there is a computer Screen Shot dated June 6, 2006 with a date time stamp of 2:48 PM taken from the computer of an Irene Wilson. Mrs. Wilson’s hand written note indicates that the veterans MEB file was located inside another veteran’s C-File. And through out the veteran’s C-File there are date-time stamps showing dates of “Discovery” of various documents in 2006. The presence of this revelation in association with the RO’s failure to list relevant facts is unsettling.

Wherefore, for the above-mentioned causes, claimant submits his claim for retroactive revision of the August 21, 2001 and August 4, 2004 rating decisions. He seeks the full sum of back pay due.

[NSA-Saigon-ET]

Eric,

Nol doubt about it, just send it in you have a sure fire winner there!

I was totally wrong and your expertise is beyond reproach.

Good Luck to you in the future.

Please be sure to send in an update !

NSa-Saigon-ET

[EricHughes]

Eric,

Nol doubt about it, just send it in you have a sure fire winner there!

I was totally wrong and your expertise is beyond reproach.

Good Luck to you in the future.

Please be sure to send in an update !

NSa-Saigon-ET

NSA-Saigon-ET, Both your reality checks and everybody questioning helped a whole lot. I really mean that. I knew I had something. But I had to dig into the c-file to find what I was missing.

[carlie]

IMO - The claim for CUE on the IU denial is just way too debatable to ever pass muster.

Here's a BVA case for CUE - higher than 30% - Prednisone RX'd.Tho this certainly sets no precedence - here's some stumbling blocks.

http://www.va.gov/vetapp09/Files4/0935953.txt

" Citation Nr: 0935953

Decision Date: 09/23/09 Archive Date: 10/02/09

DOCKET NO. 07-16 590 )

THE ISSUE

1. Whether there was clear and unmistakable error (CUE) in a

March 1999 rating decision that assigned a 30 percent

disability rating for asthma.

2. Entitlement to an effective date prior to October 13,

2005, for a 60 percent evaluation for asthma.

Final RO decisions are entitled to a presumption of validity.

The party bringing a CUE challenge to a final RO decision

bears the burden of proving that the decision was based on a

clear and unmistakable error. Berger v. Brown, 10 Vet. App.

166 (1997). This burden is not satisfied by the mere

assertion that the decision contained CUE; instead, the party

must describe the alleged error "with some degree of

specificity" and must provide persuasive reasons "as to why

the result would have been manifestly different but for the

alleged error." It is a very specific and rare kind of

error of fact or law that compels the conclusion, as to which

reasonable minds could not differ, that the result would have

been manifestly different but for the error. Fugo v. Brown,

6 Vet. App. 40 (1993).

The laws and regulations in effect at the time of the March

1999 rating determination allowed a 30 percent rating for

asthma where there was FEV-1 of 56- to 70-percent predicted,

or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or

oral bronchodilator therapy, or; inhalational anti-

inflammatory medication. A 60 percent rating was for

assignment for FEV-1 of 40- to 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) courses of systemic

(oral or parenteral) corticosteroids. 38 C.F.R. § 4.97,

Diagnostic Code 6602 (1998).

At the time of the March 1999 rating decision, the evidence

included the Veteran's service treatment records. These

records reflect that during a March 17, 1997 pulmonary

function test (PFT), the Veteran had FEV-1 of 97 percent

predicted and FEV-1/FVC of 82 percent. Another PFT was

administered on March 24, 1997, at which time the Veteran had

FEV-1 of 77 percent predicted. In March and May, 1997, the

Veteran was prescribed prednisone for 8 days and 5 days,

respectively, and an April 1997 treatment record notes that

the Veteran was "currently on oral prednisone." In June

1997, the Veteran's FEV-1 was 86 percent predicted and FEV-

1/FVC was 81 percent. A PFT administered in August 1997

measured FEV-1 of 77 percent predicted and FEV-1/FVC of 81

percent. A note in the record indicates that the Veteran had

stopped using Azmacort on a regular basis. In a September

1997 PFT, the Veteran had FEV-1 of 77 percent predicted and

FEV-1/FVC of 82 percent.

The evidence of record in March 1999 also included the report

of a VA respiratory examination performed in February 1999.

During this examination, FEV-1 was 88 percent predicted and

FEV-1/FVC was 77 percent. The Veteran reported using

inhalers on a daily basis. On examination, there was

expiratory wheezing. There was no reference to systemic

corticosteroid use, and the examiner stated that the Veteran

had had no specific treatment for asthma since his discharge.

The Board finds that the March 1999 rating decision does not

contain CUE. The evidence does not show that the Veteran had

FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55

percent at any time during the rating period. Although the

evidence does show that he made frequent visits to a

physician and had 3 courses of steroids between March and May

1997, there is no indication that this level of treatment

continued beyond the period of initial diagnosis of asthma.

As noted, the February 1999 examination report expressly

states that he did not receive any treatment for asthma after

separation.

Based on these findings, the RO could reasonably conclude the

asthma was no worse than 30 percent disabling. Therefore,

the RO's determination that the Veteran did not meet the

criteria for a 60 percent rating was not clearly and

unmistakable erroneous and the assignment of a 30 percent

rating in the March 1999 rating decision was appropriate.

The Veteran and his representative argue, in essence, that

the RO evaluated the facts incorrectly in assigning his

initial rating. A disagreement with how the RO evaluated the

facts is inadequate to raise the claim of clear and

unmistakable error. Luallen v. Brown, 8 Vet. App. 92 (1995).

Such a contention does not amount to a valid claim of clear

and unmistakable error. Baldwin v. West, 13 Vet. App. 1

(1999). The Veteran has not otherwise pointed the Board

toward any other errors which would constitute clear and

unmistakable error as defined at 38 C.F.R. § 3.105(a).

The Veteran contends that the RO erred in assigning a 30

percent rating even though the February 1999 VA examination

report indicated that he was treated with inhalational

corticosteroids during and after service. He asserts that

"parenteral" is defined as "administered by means other

than through the alimentary tract." Thus, he argues, his

use of inhalational corticosteroids is parenteral and

constitutes systemic corticosteroid treatment consistent with

a 60 percent rating. He has submitted copies of Internet

articles which identify Azmacort as a corticosteroid and

explain that inhalation is regarded as a parenteral form of

administration of some medications. Evidence that was not of

record at the time of the decision cannot be used to

determine whether CUE occurred. Porter v. Brown, 5 Vet. App.

233 (1993).

The Board concludes that the correct facts, as known at the

time, were before VA adjudicators at the time of the March

1999 rating decision and that the statutory and regulatory

provisions extant at the time were correctly applied. The RO

weighed the facts which could be supported by the record, and

the decision was not the product of CUE. The Board finds

that there was no error which was undebatable and of the sort

which, had it not been made, would have manifestly changed

the outcome."

ORDERThe claim to revise the March 1999 rating decision on the grounds of CUE is denied. An effective date prior to October 13, 2005, for a 60 percent rating for asthma is denied.

[carlie]

Eric,

I took the liberty of discussing these issues with someone that is much more knowledgeable

on MEB/PEB issues than I am.Below is the response I received, perhaps it will shed a little

more light on at least one of your claims for CUE.

" If his MEB was 2001 or before, then the VA had nothing to do with his PEB rating. The PEB is required to rate per the VASRD but did so independent of the VA. After he was separated, he would have filed with the VA for a VA rating on the PEB unfitting condition and other conditions, if applicable.

So correcting the rating for VA purposes is a VA thing.

Correcting the rating for DoD puposes is a DoD thing.

For the DoD rating, if he was separated on 9-11-2001 he can file with the PDBR to correct the rating.

If prior to 9-11-2001, he would have to go to the BCMR.

I am assuming he is a disability retiree give a 30% rating for his unfitting athsma. If that is not correct, let me know.

Are you sure both the PEB and the VA rated him at 30% initially (two separate actions)?

If he was medically separated vice medically retired we have a different issue to discuss.

If he was and remains medicallly retired due to the athsma, raising the DoD rating from 30% to 60% may not make a difference in the amount of compensation and benefits he receives. It depends on a lot of factos such as rank, time in service, and the overall VA rating for all conditions. I would hate for him to go through all the pain of a DoD appeal only to find out it does not make a difference.

Filing for a correction on the VA side usually always makes sense, however.

Mike"

[EricHughes]

Thanks for the heads up on the PEB. That pretty much confirmed what I thought. If I go the PEB route, I still would have to go back to the VA with the new PEB rating in hand for a change in my current rating. I don't think it would make a benefits difference on the DoD side of things at all. And it would be an expensive pain in the but to go through. But it is still an option, if not a very good one.