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 agree with Carlie that there is no CUE there.

CUES derive from legal errors that caused a loss in proper comp at time of the alleged CUE.

The medical evidence must have been established at time of the CUE.

Yes, the medical evidence was established at the time of the CUE. It is in the SMR and the SMR was before the RO at the time of rating. I am working from an electronic copy of the CFille provided to me by the VA. This is an error of pure fact, not an error of pure law.which is what most CUE's are.

[carlie]

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%.

Eric,

What exactly, is the medical evidence that you are saying supports an evaluation of 60 % ?

[EricHughes]

Eric,

What exactly, is the medical evidence that you are saying supports an evaluation of 60 % ?

Sorry, I'm not posting my medical records to the internet. But generally, they are the prescription records and ED admission records that clearly show three courses of corticosteroid usage. This was outlined in my original post.

[carlie]

I've joined your info together for a clearer picture.

Facts:

The entrance examination was negative for asthma. While in Korea, he developed chest pain an shortness of breath with physical exertion beginning in September 1998. His symptoms progressed despite the use of an inhaler. He reported to the emergency room on three occasions for asthma attacks and received treatment numerous times for exacerbations. He was treated with Flovent, Salmeteral, and Albuteral. He was diagnosed with asthma in March 1999.

He was referred to the Medical Evaluation Board and discharged for asthma, medically unacceptable. He was on daily bonchodilators and inhaled steroids. He was diagnosed with severe reactive airway disease and a positive methacholine challenge that showed a drop in forced expiratory volume in one second (FEV-1) by 20% and reversed by inhaled bronchodilator. At VA examination his FEV-1/FVC (forced expiratory volume in one second/forced vital capacity) was 76% before bronchodilators and 80% after bronchdilators.

Analysis:

Service Connection has been established directly related to military service.

An evaluation of 30 percent assigned under diagnostic code 6602 from September 22, 1999 the date of the veteran's discharge from service. An evaluation of 30 percent is assigned for forced expiratory volume in one second (FEB-1) of 56 to 70 percen of predicted value; or the ration of FEV-1 to forced vital capacity (FEV1/FVC) of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy; or inhalational antiinflammatory medication. A higher evaluation of 60 percent is not warranted unless there is FEV-1 was 84% before Proventil and 76% after Proventil. However, the veteran is on daily inhalation therapy which supports a 30 percent evaluation. All dobut is resolvd in favor of the veteran and a 30 percent evaluation is assigned. Teh records show and exacerbation of asthma in April 2001. On April 9, 2001, the veteran's FEV-1 results where 92.48%, 91.13%, and 86.35% of predicted value. He continued to take Serevent, Atrovent, Singulair and Allegra. An evaluation of 60 percent is not warranted since it is not supported by an FEV-1 of 40 to 55 percent predicted; of 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.

A higher evaluation is not warranted for any part of the period in which the claim was pending due to a fluctuation in symptomatology. The evidence of record does not show that the veteran's case presents such an exceptional on unusual disability picture, with such related factors as marked interference with employment of frequent periods of hospitalization, as to render impractical the application of the regular scheduler standards.

Personal Notes:

The request for additional records was sent to the wrong address. It was sent to my parents address, when I was attending school under Chapter 31 in a different town. Evidence of additional corticosteroid use in 2000, & 2001 are now of record but where not at the time of the CUE.

* * * * * * * * * * * * * * * * *

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%.

* * * Being that you had already been service connected for asthma

(with a compensable evaluation on your original rating decision, with an effective date of, day of separation - September 22,1999)

the August 24, 2001 Rating Decision has absolutely no reason to factor in your active duty medical evidence.

The way I see this is that - IF there is ANY CUE possible - it would be filed on the original decision,not the August 24,2001 Rating Decision.

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.

I am editing this to add that, even if you were able to prevail on a claim of CUE for the 60 % evaluation,

regardless of which Rating Decision a CUE is hypothetically granted on -

the Rules For Protection are:

10 years - covers no SEVERANCE, unless fraud is involved -

20 years - covers no REDUCTION, absent fraud.

You clearly would not fall under any rules of protection from even a reduction,

as 20 years of service connection (at either level) has not yet been reached.

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]

Asthma

The veteran's asthma is currently rated as 30 percent

disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602.

Under the regulations, a 30 percent evaluation is warranted

for asthma when there is 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. 38 C.F.R. § 4.97, DC 6602 (2005).

A 60 percent rating is warranted for asthma when there is

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 exacerbations, or intermittent (at least three

per year) courses of systemic (oral or

parenteral)corticosteroids. Id.

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]

Thank you that was helpful. I see now your confusion. The August 21, 2001 rating decision is the -Original- decision. It took the VA 2 years to render an original decision. Therefore the SMR's are the only medical evidence of record.

[carlie]

Thank you that was helpful. I see now your confusion. The August 21, 2001 rating decision is the -Original- decision.

It took the VA 2 years to render an original decision. Therefore the SMR's are the only medical evidence of record.

Eric,

Well thanks for clearing that up.

I still have some reservations on filing the CUE, but would certainlyN advise

to Not file it and let them sort it out.

I don't know that the domino theory on the CUE in questioning triggers that additional problems

will fly. I don't think so but hey, it's worth a try.

I see your profile shows 70% SC.

What are all of your SC'd conditions and the evaluation for each ?

I also think I read you are a para-legal, is this correct ?