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.

[NSA-Saigon-ET]

Actually I do have this guy figured out now.

He did get a 30% medical for asthma in 1999.

In 2001 he filed to the VA asking for an increase in sc for asthma but doesn't look like the VA offered a C & P. and he went with the stuff from his medical record a;long with some new stuff and was denied.

Then ion 2004, he files for TDIU as he has a total of 70% and was denied.

So now he comes here and says he has a CUe from the git go of 1999 which is not a VA decision so that will be thrown out.

There is a blurb in the 2001 decision which states while his claim iz pending that fluculations in symptoms are not to be regarde in his claim while it is still active and he is denied again.

TDIU is not awarded in 2004.

This guy has no CUE at all , but he may be able to settle for reopening the claim for an increase in asthna.

I am done here, good lucjk to you veteran.

[EricHughes]

I understand this has been frustrating to you folks. But I sincerely appreciate your patience. You really are helping me to clairify the facts.

As you don't have the 2001 rating decision, you are missing one important thing.

I received a 30% disability rating for asthma from the MEB and was retired on 21 Sept 1999.

On October 9, 1999, I filed for SC with the VA. It took the VA until 2001 to rate the original claim for SC.

The -original- error was that the prednisone bursts in the 1999 SMR appear to have not been forwarded to the MEB. Thus the MEB rating of 30%. But this should have been picked up on when the VA reviewed the SMR for their own rating in 2001 based on the SMR's and granting a SC effective date of 22 Sept 1999 for asthma.

Bottom line, the MEB created an error. The VA failed to catch the error as required by case law. Massey v. Brown, 7 Vet. App. 204 (1994) specifically.

[carlie]

Bottom line, the MEB created an error. The VA failed to catch the error as required by case law.

Massey v. Brown, 7 Vet. App. 204 (1994) specifically.

Post the link to Massey - it makes our volunteer work time a bit easier.

[EricHughes]

Post the link to Massey - it makes our volunteer work time a bit easier.

The case is archived, so there is no link to share. However, I will copy and paste the holding:

"Rather, the Board's findings relate to rating criteria which are almost entirely outside the DC 9405 criteria. The rating criteria require no findings as to alertness, coherence, evidence of psychosis, affect, mood, or memory. Nevertheless, the Board found discussion of these factors to be probative. For example, the Board found persuasive the fact that the appellant had not been hospitalized for his disability and showed "no evidence of psychosis." Yet, nowhere in the rating formula is there any requirement regarding hospitalization or psychosis. On the other hand, the Board determined that there was "some evidence of poor abstraction ability, as evidenced by the [appellant's] tendency to be somewhat concrete in his thinking." Although abstraction ability and concrete thinking appear to relate to the DC 9405 criterion of lack of "flexibility," the Board was clearly erroneous in its conclusion that the appellant was "somewhat concrete in his thinking." To the contrary, the only evidence of record showed that the appellant's "abstract thinking is extremely concrete", that he has "poor abstract thought," and that he "tends to be concrete in thinking". We thus reverse that conclusion. See 38 U.S.C. § 7261(a)(4) (Court to reverse "clearly erroneous" findings of the Board).

"The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law. Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992). "In using a standard that exceeded that found in the regulation, the Board committed legal error." Id. Therefore, the case will be remanded for the Board to be readjudicated under the correct DC criteria."

[carlie]

I do not see how the below would apply to your CUE.

"The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law.

Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992). "In using a standard that exceeded that found in the regulation, the Board committed legal error."

[NSA-Saigon-ET]

I understand this has been frustrating to you folks. But I sincerely appreciate your patience. You really are helping me to clairify the facts.

As you don't have the 2001 rating decision, you are missing one important thing.

I received a 30% disability rating for asthma from the MEB and was retired on 21 Sept 1999.

On October 9, 1999, I filed for SC with the VA. It took the VA until 2001 to rate the original claim for SC.

The -original- error was that the prednisone bursts in the 1999 SMR appear to have not been forwarded to the MEB. Thus the MEB rating of 30%. But this should have been picked up on when the VA reviewed the SMR for their own rating in 2001 based on the SMR's and granting a SC effective date of 22 Sept 1999 for asthma.

Bottom line, the MEB created an error. The VA failed to catch the error as required by case law. Massey v. Brown, 7 Vet. App. 204 (1994) specifically.

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.

I try to help all Vets by poking holes in their claim. Better here before you file then to receive a denial on the real thing.

You do not have a claim for CUE. Here is the reason: your only evidence is some prescriptions you say were not before the rater at the time of the decision. However they are in your C-file and so if that is true, then they were available for the rater in your 2001 decision and they did not sway the decision. the reasons stated that your condition was not remarkable different to change the rating. CUE is when the evidence omitted fairly shouts out to the world that this is wrong. I do not see that here.

I can speak with some confidence as in one of my own issues dealt with a injury I sustained in Vietnam. The VA kept denying it happened as it was not clearly defined in my SMR, but my statements clearly noted I had received treatment at a military hospital and gave the exact info. They never retrieved the info and when I finally submitted it myself they owned up to the CUE and awarded it back to the original claim. The evidence shouted to the world that the injury had happened exactly as I said and that the were wrong.

The focus is on the basics, always build from the ground up. you may have a claim for an increase in benefits now, but of course you may file for CUE.

I can not offer anything more constructive so will simply wish you Good Luck in this issue.

NSA-Saigon-ET

Edited October 20, 2011 by NSA-Saigon-ET