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

[Berta]

Thank you - I had no idea the main BVA number had changed!

Hoppy- do you have the VBM by NVLSP. Chapter 14 contains information on Common VA errors and how to appeal or, in some cases, CUE them.

I believe this Chapter is contained in every VBM since 1991.

[Hoppy]

Brian,

I am going to address one issue now and later respond to any recent posts.

I had said that I would get something posted by Saturday. Actually, I ran into some distractions Saturday and just posted what I had. There was one portion of my position that I wanted to continue to develop. It required that I go back online and re-read the reports because I wanted to reference specific dates. I was able to get enough time to finish this when I woke up this morning.

Beside the fact that they did not investigate how exercise was impacting your ability to function the biggest problem I had was that the C&P examiner referred to a time period using such a vague term as "recent months". I do not see how this phrase would allow any rater the ability to make any assessment as to the reported frequency of episodes of PAT. The comment that I made that the period of time represented no more than five weeks was based on a 30 day month. I wanted to develop a scenario that has a real basis and is not ruled out by the rater's use of the phrase "recent months". This scenario involves the real possibility that the reference was to events occurring in different calendar months.

Addendum

The C&P examiner made a vague reference describing the events of PAT as occurring 6 times in 'recent months". This term is not sufficiently definitive to allow any rater to make an assessment as to the frequency of PAT events. Using an interpretation that the reference was to "calendar months" raises the real possibility that the time period identified could be a reference to a diminutive number of days. There is no evidence to the contrary. An interpretation that the reference is to a time period longer than a diminutive number of days would be based on speculation.

Case in point: The veteran attends a C&P exam on 12/12/67 during this exam the veteran tells the examiner that he went to his brother's birthday party on November 29^th. During the party he had a PAT event and has had five more since then. The last episode of PAT occurred on 12/8/67. The rater represents this scenario with the phrase "recent months". Such a phrase would not contradict the facts as stated by the veteran when considering the events occurred in different calendar months. Thus, the veteran had 6 events in approximately 10 days. In addition to various interpretations of the frequency of events an overriding result is that there is no objective evidence the investigation involved a time period longer than 10 days.

As indicated in the cited BVA case a study of events occurring over a time period of two weeks was not considered sufficiently accurate to show improvement under provisions of cfr 4.1 and 3.334 ( C ). Asking the veteran at this time to supply details of the events in 1967 for the purpose of resolving any ambiguity in the examiners statement would not be sufficiently reliable due to the passing of over forty years. Lack of memory or confusing memories of various time periods would be a real possibility. The exam was obviously flawed in 1967 and the rater failed to return it to the examiner as required by cfr 4.2.

Edited December 12, 2011 by Hoppy

[Hoppy]

Berta,

I do not have any information on CUE's other than what I find in BVA cases. I found a case allowing CUE due to an inadaquate exam that applied to all reductions even those not protected by cfr 3.344 ( C ). When I read the cases and CFR's identified in that case by the BVA, I continued to read their cited cases and decided they applied to Brian's claim. I also found old posts you made on hadit regarding CUE's an used them as a guide when deciding what issues could not be addressed in a CUE.

[bm6546]

Brian,

I am going to address one issue now and later respond to any recent posts.

I had said that I would get something posted by Saturday. Actually, I ran into some distractions Saturday and just posted what I had. There was one portion of my position that I wanted to continue to develop. It required that I go back online and re-read the reports because I wanted to reference specific dates. I was able to get enough time to finish this when I woke up this morning.

Beside the fact that they did not investigate how exercise was impacting your ability to function the biggest problem I had was that the C&P examiner referred to a time period using such a vague term as "recent months". I do not see how this phrase would allow any rater the ability to make any assessment as to the reported frequencyof episodes of PAT. The comment that I made that the period of time represented no more than five weeks was based on a 30 day month. I wanted to develop a scenario that has a real basis and is not ruled out by the rater's use of the phrase "recent months". This scenario involves the real possibility that the reference was to events occurring in different calendar months.

Addendum

The C&P examiner made a vague reference describing the events of PAT as occurring 6 times in 'recent months". This term is not sufficiently definitive toallow any rater to make an assessment as to the frequency of PAT events. Using an interpretation that the reference was to "calendar months" raises the real possibility that the time period identified could be a reference to a diminutive number of days. There is no evidence to the contrary. An interpretation that the reference is to a time period longer than a diminutive number of days would be based on speculation.

Case in point: The veteran attends a C&P exam on 12/12/67 during this exam the veteran tells the examiner that he went to his brother's birthday party on November 29^th. During the party he had a PAT event and has had five more since then. The last episode of PAT occurred on 12/8/67. The rater represents this scenario with the phrase "recent months". Such a phrase would not contradict the facts as stated by the veteran when considering the eventsoccurred in different calendar months. Thus, the veteran had 6 events inapproximately 10 days. In addition tovarious interpretations of the frequency of events an overriding result is thatthere is no objective evidence the investigation involved a time period longerthan 10 days.

As indicated in the cited BVA case a study of events occurringover a time period of two weeks was not considered sufficiently accurate to show improvement under provisions of cfr 4.1 and 3.334 ( C ). Asking the veteran at this time to supply details of the events in 1967 for the purpose of resolving any ambiguity in the examiners statement would not be sufficiently reliable due to the passing of over forty years. Lack of memory or confusing memories of various time periods would be a real possibility. The exam was obviously flawed in 1967 and the rater failed to return it to the examiner as required by cfr 4.2.

"As indicated in the cited BVA case a study of events occurringover a time period of two weeks was not considered sufficiently accurate to show improvement under provisions of cfr 4.1 and 3.334 ( C ). Asking the veteran at this time to supply details of the events in 1967 for the purpose of resolving any ambiguity in the examiners statement would not be sufficiently reliable due to the passing of over forty years. Lack of memory or confusing memories of various time periods would be a real possibility. The exam was obviously flawed in 1967 and the rater failed to return it to the examiner as required by cfr 4.2"

Hoppy, you are right on the money with this. Sometimes I can't remember what I did last week, let alone remember the events over 40 years ago. I am trying to rack my brain as to what transpired with the C&P exam and the medical exam before that. From what I can remember, it wasn't very significant from what I can remember back in 1967.

Brian

More to follow.

[carlie]

Here's a BVA case that might be worth a read.

http://www.va.gov/vetapp09/Files5/0940320.txt

[Berta]

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.

Edited December 12, 2011 by Berta