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.

[etcm]

I expected there to be some questions with the TDIU and protected rating. But what is your question for the difference in rating for asthma?

Did you have treatment the required number of times in the one-year preceding the 2001 decision? It reads like you stopped in 1999 and no longer met the one-year requirement. I do not know for sure, but it seems like a way they can weasel out of following the rating criteria. And anytime it gets to a "judgement" on the part of the rater, they apparently say it is not a CUE. I like your way of presenting facts. Are the rating criteria that you cite the ones in effect in 2001?

I used to have an Eric Hughes that served with me in the early 90's - a nuke ET

Good luck

Edited October 18, 2011 by etcm

[EricHughes]

Did you have treatment the required number of times in the one-year preceding the 2001 decision? It reads like you stopped in 1999 and no longer met the one-year requirement. I do not know for sure, but it seems like a way they can weasel out of following the rating criteria. And anytime it gets to a "judgement" on the part of the rater, they apparently say it is not a CUE. I like your way of presenting facts. Are the rating criteria that you cite the ones in effect in 2001?

I used to have an Eric Hughes that served with me in the early 90's - a nuke ET

Good luck

Yes, I can show an average of three corticosteorid bursts between March 1999 and March 2010 when my asthma improved due to allergy shots. This is of record and the VA has accepted that record for the higher rating in later decisions.

The Rating Criteria are the ones from 2001, as I copied them from the rating decision.

A CUE is only permitted when the error is a question of Pure Law, or a question of Pure Fact. The application of laws to facts is a question of judgement and not a CUE.

I was an EMT in 2 FSB Camp Hovey Korea in 1997-1998, and at Ft. Bragg in 1998-1999. The asthma I developed from the great flood of August 5, 1998 in South Korea.

[carlie]

A CUE is only permitted when the error is a question of Pure Law, or a question of Pure Fact.

The application of laws to facts is a question of judgement and not a CUE.

Eric,

To even start posting additional verbiage does nothing but muddy the waters.

The words "Pure" is something YOU are throwing in there that SHOULD NOT be used.

I have no idea why you have posted,

"The application of laws to facts is a question of judgement and not a CUE."

The application of law to facts IS NOT A JUDGEMENT CALL !

The FAILURE TO APPLY THE LAWS (AND REGS/RATING CRITERIA) to the FACTS (Medical Evidence) is a CUE.

CUE INFO

(1) either the correct facts, as

they were known at the time, were not before the adjudicator

(i.e., there must be 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

clear and unmistakable error must be based on the record and law

that existed at the time of the prior adjudication in question

CUE is a very specific and rare kind of

error. "It is the kind of error, of fact or law, that when

called to the attention of later reviewers compels the

conclusion, to which reasonable minds could not differ, that the

result would have been manifestly different but for the error.

Thus, even where the premise of error is accepted, if it is not

absolutely clear that a different result would have ensued, the

error complained of cannot be, ipso facto, clear and

unmistakable." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993)

(citing Russell at 313). The Court has defined CUE as

administrative failure to apply the correct statutory and

regulatory provisions to the correct and relevant facts. See

Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However,

the mere misinterpretation of facts does not constitute clear and

unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251,

253 (1991). The Court has also held that the failure to fulfill

the duty to assist does not constitute clear and unmistakable

error. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996);

Caffrey v. Brown, 6 Vet. App. 377 (1994).

[carlie]

Yes, I can show an average of three corticosteorid bursts between March 1999 and March 2010 when my asthma improved due to allergy shots. This is of record and the VA has accepted that record for the higher rating in later decisions.

The Rating Criteria are the ones from 2001, as I copied them from the rating decision.

A CUE is only permitted when the error is a question of Pure Law, or a question of Pure Fact. The application of laws to facts is a question of judgement and not a CUE.

Eric,

Any medical evidence showing steroid RX'd AFTER the Aug 2001 Rating Decision is not relevant to a claim for CUE

on the Aug 2001 Rating Decision.

Perhaps the March 2010 date above was a type-o.

You posted,

"A CUE is only permitted when the error is a question of Pure Law, or a question of Pure Fact.

The application of laws to facts is a question of judgement and not a CUE."

The word "Pure" should not be used and the underlined above is NOT CORRECT.

[EricHughes]

ts is a question of judgement and not a CUE."

The application of law to facts IS NOT A JUDGEMENT CALL !

The FAILURE TO APPLY THE LAWS (AND REGS/RATING CRITERIA) to the FACTS (Medical Evidence) is a CUE.

CUE INFO

Please review "Standards to the Standards of review" by Lee Will Berry IV, clerk to the CAVC. The Law Review Article can be found at "Veteran's Law Review" via the following link:

http://www.bva.va.gov/VLR_VOL3.asp

The legal concepts of "Pure Law" and "Pure Fact" are specific terms that apply to standards of review. The spectrum in between the two are subject to debate and interpretation and also subject to a sliding scale of standard of review. This grey area in between deals with the assignment of weight of evidence, and as such are not CUE's. A succinct graph detailing the concepts as they apply to the CAVC can be found on page 268.

[EricHughes]

I would like to thank the members of this board for reminding me not to draft a claim without first packaging it in a manner consistent with elements of law to be applied. I have made the needed corrections and will discuss them with my attorney. As I will be obtaining -professional- analysis of my position later this week, there is no need to further debate the merits of my claim.