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]

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

Thank you J.

I do have such an attorney on retainer. I came here looking for the reactions of someone that does not have a dog in the fight. I was hoping coming here would expose the weaknesses in my position, so that they can be anticipated and addressed in the filing.

[EricHughes]

The following is the "TEST" for a CUE. All three cases must be met.

(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))

J is correct. I should be arguing that the regulation was incorrectly applied to the facts that were known at the time of the decision.l The error is plainly not debatable, the prednisone scripts clearly demand a specific outcome and would have manifestly changed the outcome at the time it was made. The version of CFR Part 4 to be applied is clearly spelled out in the rating decision.

I will revise my claim to meet the above test.

[broncovet]

Eric...

Put your "Cue" stick away, unless you are playing pool, and it you are trying to win an eed, it does not appear you need it. Instead, go for N and M SERVICE records, which means you can preserve your effective date.

See 38 CFR 3.156C

[EricHughes]

Eric...

Put your "Cue" stick away, unless you are playing pool, and it you are trying to win an eed, it does not appear you need it. Instead, go for N and M SERVICE records, which means you can preserve your effective date.

See 38 CFR 3.156C

Very Good TIP! Thanks a billion!

[EricHughes]

Revised N&M Service records claim follows:

To Whom It May Concern: In accordance with 38 CFR § 3.156© claimant submits New and Material SERVICE records to reopen the August 24, 2001 rating decision.

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 his possession 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

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

The consequence of these new and material SERVICE records is that the original a disability rating of 30% for asthma was wrongly assigned. The correct rating for asthma should have been 60% for the following reasons.

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]

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.” But absent from the discussion of facts is the claimant’s prescription record for Prednisone.

Subsequently 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.

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.

Sincerely,

Eric Lee Hughes

[broncovet]

Yes. I often see Vets trying to prove "Cue" unnecessarily so. I have even seen Vets allege CUE when they are within the one year period for appealate review! You can take the "hard road" if you like, but you just might find yourself on a "dead end" by doing this.

Some incorrectly perceive that Cue is the ONLY way to get past the one year appealate review, when 38 CFR 3.156 C clearly allows for this exception due to new "SMR"s.

Cue essentially "stiffens" the "standard of review" from "benefit of the doubt" to "undebatable".

Why accelerate your standard of review if it is unnecessary?

I think it is often the case that there are missing service records, and that Vets are denied as a result.