Carlie, Could You Please Take A Look At This

[bm6546]

Carlie,

I would appreciate it if you would please look at this and tell me what you think. I know you deal a lot with claims that involve a CUE.

I would like your take on this.

Thanks in advance,

Brian

[Hoppy]

Carlie

taken from the case you cited

"In light of the foregoing, the Board finds that the Veteran's

claimof CUE is based on a claim of an erroneous or

inadequate interpretation of thefacts by the RO."

I am totally aware that you cannot base a CUE on interpretation of the facts. I was very careful to steer away from issues based on interpretations of the fact. All the issues involved in my position identify that the exam was inadequate to use as the basis of a decision. Brian's claim is more like the two cases I cited that did result in a CUE. Brian'sclaim involves historical issues that were not addressed and an exam that used descriptive terms that were so vague that the exam contained no facts at all that could be used to determine whether or not there was achange for better or worse..

This was on my computer. It came from one of the cases I cited and was used by the BVA when they awarded a CUE. I think it came from Brown V. Brown

iii. General regulatory requirements: Additionally, the Board failed to comply with severalgeneral VA regulations applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by §3.344©. Specifically, _CFR_4.1 38 C.F.R. § 4.1 (1992) states that "it is. . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, _CFR_4.2 38 C.F.R.§ 4.2 (1992) establishes that "it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath, 1 Vet. App. at 594. Furthermore, _CFR_4.1338 C.F.R. § 4.13 (1992) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the {5 Vet. App App. 421} thoroughness of the examination or in use of descriptive terms."

Edited December 12, 2011 by Hoppy

[bm6546]

Hoppy, I probably wont have time to read Brain's older decision if he posts it here-

My neighbor might be using my access to hadit for a few days. His PC is shut down due to some work he is having done in his home and he has relative with a VA claim he is helping.

Meantime I am still trying to resolve my issue.I asked VA to CUE itself under the same auspices of 38 USC 5109A that applies to claimants filing CUE.

You are on the right track and BVA decisions on CUE claims hold a wealth of info whether the claim was awarded or denied.

Berta, I am trying to scan my Rating Decision on 2-5-68 but my scanner is having a mind of its own. I will keep trying to figure out what the problem is and scan it here.

Brian

[bm6546]

Brian- I advise that you send any new information directly to the BVA with proof of mailing.

Whatever I had sent to the AMC was lost, ignored and/or destroyed.

I sent it all however to the BVA too.Good thing I did that.

Put your BVA remand docket number in a cover letter with the submission and then check via email with the BVA ombudsman or by calling the BVA directly about a week or so later to confirm the BVA received it.

Hoppy this is well done but vastly different from my pending CUE claims.

While I do beieve a CUE occurred , could Brain scan and attach here the actual decision that you are alleging holds the CUE?

It will take me some time to respond to this again as I have a situation with VA that is taking up almost all of my time.

Shouldn't I get a letter or something from the AMC telling me about my remand. And won't it tell me their address where to send any additional material.

[carlie]

Carlie

taken from the case you cited

"In light of the foregoing, the Board finds that the Veteran's

claimof CUE is based on a claim of an erroneous or

inadequate interpretation of thefacts by the RO."

I am totally aware that you cannot base a CUE on interpretation of the facts. I was very careful to steer away from issues based on interpretations of the fact. All the issues involved in my position identify that the exam was inadequate to use as the basis of a decision. Brian's claim is more like the two cases I cited that did result in a CUE. Brian'sclaim involves historical issues that were not addressed and an exam that used descriptive terms that were so vague that the exam contained no facts at all that could be used to determine whether or not there was achange for better or worse..

This was on my computer. It came from one of the cases I cited and was used by the BVA when they awarded a CUE. I think it came from Brown V. Brown

iii. General regulatory requirements: Additionally, the Board failed to comply with severalgeneral VA regulations applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by §3.344©. Specifically, _CFR_4.1 38 C.F.R. § 4.1 (1992) states that "it is. . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, _CFR_4.2 38 C.F.R.§ 4.2 (1992) establishes that "it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. See Schafrath, 1 Vet. App. at 594. Furthermore, _CFR_4.1338 C.F.R. § 4.13 (1992) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the {5 Vet. App App. 421} thoroughness of the examination or in use of descriptive terms."

Hoppy,

What caught my attention with the case I posted was I don't think the claim for cue will fly

if it has anything to do with an inadequate examination, even if the issue is in regards to a reduction.

If I remember right, examinations fall under duty to assist.

I don't know whether it might be easier to fight this specific issue under

grave procedural error, rather than the route of a claim for cue in the reduction.

If I have understood the thread correctly - I think the argument being presented is that

there was a cue in the reduction, based on the medical evidence being of less quality

than the medical evidence that originally granted the claim. Is this right ?

I might be as confused as usual :-)

"In light of the foregoing, the Board finds that the Veteran's

claim of CUE is based on a claim of an erroneous or

inadequate interpretation of the facts by the RO. As noted

above, an assertion of a failure to evaluate and interpret

correctly the evidence is not a valid allegation of CUE. See

Damrel v. Brown, 6 Vet. App. 242, 245 (1994). The Veteran

has not provided reasons as to why one would be compelled to

reach the conclusion, to which reasonable minds could not

differ, that the result of the previous decisions in regard

to the evaluation of his right bundle branch block would have

been manifestly different but for an error. Rather, he has

raised a garden variety of assertions of error that do not

give rise to a valid claim of CUE."

[Wings]

x

x

x

CUE or NOT CUE, in this claim at issue, the BVA NEVER made a single reference to the vet's claim of CUE. Moreover, in this BVA Remand, they did not reference the vet's various arguments as they were presented in his Appeal. There is also a claim for anxiety, which is not cited in the BVA Remad. The BVA has instead chosen to Remand for futher medical evaluation. ~Wings

[71M10]

Greetings all:

I don't know if this makes a difference or not. The reduction in 68 (exam late 67) did not indicate that the Veteran had improved, it had indicated that the earlier 10% rating was an error/inappropriate. The screwy thing(and to Brian's advantage) is that they didn't sever service connection (which they cannot now do-protected).

A lot of CFR references that have been thrown about in this CUE discussion were amended updated after 68. Is there a site where we can see the CFR as it was written at the time the decision was made? Can we site any BVA or CAVC decisions post 68 to prove CUE?

My apologies, this post is more aimed at gaining an understanding of some of the finer points on CUE than addressing the question at hand.

Best regards,