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]

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.

Eric,

This is not law for VA purposes, it's an article on the BVA's web site under Notes and Comments

I'm glad to see you have legal representation as perhaps they will explain to you that in a claim for CUE,

keep it SIMPLE and to the point.

If you even attempt to begin dragging in issues that you are posting

you can kiss your claim for CUE - goodbye.

All this extra - external, legal mumble-jumble you are posting, certainly brings to thought that these issues

are debatable.

Written articles even by way of publication from Veteran's Law Review doesn't provide any precedence

to your issue of your claim for CUE.

Your claim for CUE is very simple -

the statutory or regulatory provisions extant at the time (for your DC under 38 CFR Part 4) were incorrectly applied;

to the medical evidence of record.

The VARO's failure to apply the medical evidence of record (3 X RX'd steroids within a 12 month period) to the Rating Criteria

and adjudicate a percentage of 60%, cost the claimant monetary compensation.

[carlie]

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.

Eric,

Since a couple of days ago you posted,

"Even though i am confident in my position, I still have hired an experienced attorney to review my work and make the argument."

I was under the impression you already had some one to do a "professional - analysis".

Nice posting with you.

Good subjects !

[EricHughes]

Naw, I sent a copy to him. But he doesn't have time to review it until Friday. Something about hearings, and other vets deadlines. :-P Everything I have posted has been my own work so far. I'm hampered because my NVSLP veteran's handbook is on back order.

Well, anyhow. Here is what you guys helped me to produce:

To Whom It May Concern:

Veteran claims a Clear and Unmistakable Error was made on August 24, 2001, and August 4, 2004 rating decisions for benefits.

The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (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)).

CUE in August 24, 2001 decision:

Element 1(a)i: Facts as they where known at the time:

On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes in the Service Medical Record referring to the prescription of “Prednisone”, a corticosteroid for treatment of his SC Asthma condition. 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 electronic C-File active duty prescription records. They clearly show three separate prescriptions for Prednisone in the active duty period twelve months directly prior the effective date of service connection for Asthma and also the date of separation from active service.

Element 1(a)ii Facts as they were before the adjudicator

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

Element 2(a) Undebateable Error:

The absence of this significant fact from the reasons and basis discussion for the asthma disability rating is undebateable.

Element 2(b) Manifest Difference:

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] Note the use of the term “Is warranted” as opposed to the term “Will be considered” used at the 100% rating level. Unlike the latter, the former indicates a non-optional disability award when the conditions are met.

Element 3: Compliance with law at time of error:

In developing the case, it is essential to obtain medical findings that are stated in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). By failing to include within the discussion of facts, the veteran’s need and usage of corticosteroid bursts in the twelve months prior to separation from service/effective date of disability, the RO failed to comply with caselaw as it existed at the time of error.

CUE in August 4, 2004 decision

Element 1(a)i Facts as they where known at the time

For the reasons detailed above, the facts at the time of the August 4, 2004 rating decision was that the veteran was using prednisone or another corticosteroid to control his asthma condition an average of three times per year. This should have been sufficient to grant a disability rating for asthma of 60%.

Element 1(a)ii Facts as they where known to the adjudicator

The adjudicator cites no facts regarding the veterans TDIU claim other than the lack of either a single 60% disability rating, or two 40% disability ratings with a net disability rating total of 70% or more as required by 38 CFR 4.16

Element 2(a) Undebateable Error:

Denial of the veteran’s TDIU claim on the basis that the veteran did not meet the minimum disability rating standards set fourth in 38 CFR 4.16 is only valid to the extent that the history of the veteran’s disability is valid. The medical opinion shall be rejected when the history upon which it is based in inaccurate. Swann v Brown 5 Vet. App. 229 (1993). In this case the RO’s August 4, 2004 error was predicated upon the above detailed factual error within the record.

Element 2(b) Manifest Difference:

The decision to grant or deny a request for TDIU is an all or nothing decision that carries with it an implicit manifest difference in outcome.

Element 3 Compliance with law at time of error:

This is an error of pure fact, not an error of law. The facts before the adjudicator where inaccurate. The error of fact having been corrected in the record, demands a change in outcome.

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.

[EricHughes]

I deleted the table with the prescription information since the forum webpage does not seam to like tables.

[etcm]

I deleted the table with the prescription information since the forum webpage does not seam to like tables.

Eric,

I am sure that you have done this but I will ask if you have reviewed the path that a CUE takes during the adjudication process. Carlie identified that you need to keep it simple and to the point. The reason I repeat that is because the claim will not be adjudicated by a lawyer but by a regular claims rater who might or might not have much experience in this issue. They do not review court cases too much to my knowledge, they are trained and told how to implement the law(s). They use their M21-1MR and a whole lot of other (not too obtainable direction documents) . Of course you need the facts, but your text reminds me of the interchange in the movie Legally Blond where the lead actress gets told by the judge not to try to teach her about what the law says and to get to the point.

Now I am not an expert as I am still awaiting adjudication of my own CUE, but I would encourage you to separate the CUE to allow for the assignment of the higher percentage based on the evidence (cortosteroid prescriptions) and not tie it to the TDUI issue. Why? Well they might have said "No" due to no 60% rating but there might not be enough evidence to award this rating even WITH the 60%. They could churn a refusal for this years portion to denial for all of it and churn your case for years until it gets to a high enough appeal that will look at the facts and not opinion(s).

This is just my 2+ cents

[NSA-Saigon-ET]

I tried to follow this mess, but it gets deeper all the time.

So if I get this right then it will be a good day !

Eric received a medical discharge in 1999 with a 30% SC for Asthma from the MEB which is not the VA.

In 2001 he filed for something and was denied by the VA. I believe he was looking to get a increase in his rating. I do not know if he had a C &P exam.

In 2004 he applied for TDIU and was denied.

Now he wants a CUE from the VA, but does he want it from the 1999 decision not from the VA or does he want it from the 2004 decision denying something.

If he wants it from the MEB decision that will never happen as they are se[arate entities.

If he filed for 2001 for an increase then they should have a C & P performed.

The TDIU issue is a no issue at this point.

Did you ever post your C & P exam from 2001?

NSA-Saigon-ET

Edited October 19, 2011 by NSA-Saigon-ET