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.

[carlie]

Ah, well that isn't what happens when you live in VISN 10. They love to split hairs here in Ohio. In the same rating decision that they granted SC for "Mood Disorder" they denied SC for Bi-Polar Disorder., Likewise they granted SC for PTSD but denied SC for Anxiety Disorder in a different rating. Then they blame all symptoms on the two disorders they didn't service connect. I'd file a CUE for Inextricably Intertwined, but for now I agree with the 10% overall rating. So it is moot.

Which VISIN the claim is adjudicated thru isn't relevant for this reg.

I wasn't relating it to the issue of SC but to the issue of comp.SC.

"VA only comps for one MH disorder,"

[NSA-Saigon-ET]

Well, once again you are wrong on both statements.

My opinion is as welcome here as is yours and your logic in this supposed CUE is flawed.

This CUE approach has been tried by many and always fails to rise to the level of CUE.

The second error you made is thinking I am attacking you personally and is also not true, I merely made an observation.

NSA-Saigon-ET

[carlie]

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.

Also, regs for resp. conditions were changed I believe twice and off hand I don't remember

the month and year of any changes.

I don't think the IU issue will fly at all in relation to the theory posted

and

for the portion of the argument that continues on with the rating would have been protected -

the only thing that met the criteria for protection on, would be severance -

you'd would need about another 9 or so years to have protection from reduction, so that one for sure falls flat on it's face.

JMHO

[carlie]

I actually think this is a good topic / thread for discussion.

JMHO

[jbasser]

What is not allowed by regulation is a review of the weight of evidence. A failure to consider evidence before the rater at the time of rating is quite another thing. The second is a question of pure factual error.

Clearly you believe that the law is different. Can you cite the basis for your position? Or are you limited to personal attacks?

Eric, the basis for your cue is solely based on this fact.

The VA failed to properly apply the regulation in the title 38 CFR part 4. when they awarded 30 percent when the regs clearly state you are entitled to a 60 percent rating.

If I were you, I would retain an attorney. Someone who only does VA claims. They can advise you on the cue. Dont go it alone or the VA will eat your lunch and burp you back a reduction.

J

[EricHughes]

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.

Also, regs for resp. conditions were changed I believe twice and off hand I don't remember

the month and year of any changes.

I don't think the IU issue will fly at all in relation to the theory posted

and

for the portion of the argument that continues on with the rating would have been protected -

the only thing that met the criteria for protection on, would be severance -

you'd would need about another 9 or so years to have protection from reduction, so that one for sure falls flat on it's face.

JMHO

The rating table changed in 2000. But they chose to apply the 2000 rating table instead of the 1999 rating table at the time in question. Which is fine, either one still would produce a 60% rating. In another portion of the rating decision on weight gain, they do mention the prednisone script. Thus it was clearly before them at the time of rating.

The IU argument is a stretch, but I don't believe it is an unreasonable one since the reasons and basis for the TDIU claim denial change if the original rating decision is revised.

You are correct, the protection is flawed. My bad.