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Could This Be A Possible Cue?

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StreetWalker

Question

I was denied TDIU recently. One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent.

Been doing some legwork and research and here's what I have come up with.

I have obtained a copy of my SSA-831-C3 which is the Disability determination and transmittal.

In section 17 I have the following codes. Diary type - MRP, mo/yr - 07/2019, reason 7.

According to https://secure.ssa.g.../lnx/0426510020 these codes show that I'm "Medical Improvement Not Expected".

This directly conflicts the wording in my TDIU denial. Does this make the cut for a CUE?

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  • HadIt.com Elder

Remember the key to it being a CUE, from the claimant's point of view, is that the decision must be final. You stated that this was a recent decision, therefore I doubt it's a CUE, as the one yr deadline probably hasn't passed, however Berta is correct, they have made an error and you can either ask them to reconsider, CUE themselves, or NOD the decision. We feel an obvious error is a CUE but the VA gives a CUE a legal definition, thereby imposing certain requirements, and this is where most of us make the mistake. jmo

pr

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"There was no reference to ANY doctor stating whether or not my conditions are permanent."


So it appears the VA overlooked the SSDI disability codes as well as substituted their non medical opinion for a real medical opinion.

Colucci- (CAVC 98-1431) the court states:


"VA adjudicators may consider only independent medical evidence to support their conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991).

reinterated in Colvin V Derwinski:

A merits-based review of a claim requires the Board to 
provide a written statement of the reasons or bases for its 
findings and conclusions on material issues of fact and law.  
38 U.S.C.A. § 7104(d)(1) (West 1991).  To this end, the Board 
must analyze the credibility and probative value of the 
evidence, account for evidence which it finds to be 
persuasive or unpersuasive, and provide reasons for rejecting 
any evidence favorable to the veteran.  See Masors v. 
Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 
Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  Moreover, the Board may not base a decision on its 
own unsubstantiated medical conclusions but, rather, may 
reach a medical conclusion only on the basis of independent 
medical evidence in the record or adequate quotation from 
recognized medical treatises.  See Colvin v. Derwinski, 1 
Vet. App. 171 (1991).

http://www.va.gov/vetapp01/files01/0106031.txt

Also Broncovet's point here supports that:

Also:

“In this regard, the Board points out that the examiner was asked to express a medical opinion about the severity of the Veteran's service-connected psychiatric disorder and its impact on his ability to work. In this, and in other cases, only competent evidence may be considered to support Board findings. The Board is not free to substitute its own judgment for that of an expert. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). “


http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files6/1243340.txt


That goes for any VA rater too. The rater here substituted their opinion for a finding that you are employable yet the SSDI award is prime facie evidence that you are Not employable.

You have sure taken the right steps to attempt to get this fixed.


What gets me is that SSDI is very hard to get these days, and SSA will try to use those exact reasons ,

'the examiner opined that you are capable of sustaining and gaining employment in a sedentary environment that does not involve lifting, squatting, bending or frequent twisting movements. '

to DENY many many SSDI applicants, yet they didnt deny you on that basis.

I believe you can turn this around and you do have many options.

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Thanks Berta.

It is rather confusing. The only medical records that SSA used were my VA medical records. I had no appointments nor any exams. They received my VA medical record one day and approved me the next.

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  • Moderator

Of course, Berta has given good advice. (Doesnt she always.?) We have not seen your case, and we have to rely on the accuracy of your interpretations. If you have an unclear or incomplete C and P exam, then they are supposed to ask for clarification, not just deny you. Of course, they do that all the time and it usually means appeal, and a remand for a proper C and P exam.

You may be able to "short circuit" the long road to remand, new C and P, and new RO decision (probably about 4 years), by filing a CUE, especially if you can support your position with an IMO/IME that is complete.

There are several "no no's" by which you can get a faulty C and P exam thrown out. For example, did the examiner list his/her qualifications? If the examiner is unqualifed to make a medical determination, such as little or no expertise, then the exam should be discarded. If the examiner had a PHd in English Literature, and no other training, his opinion on your TDIU is likely not probative.

Also, the examiner should state if he reviewed the records. Maybe he did not have your records when he did the exam. What value would his opinion be if he did not know your history?

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  • HadIt.com Elder

I was denied TDIU recently. One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent.

Been doing some legwork and research and here's what I have come up with.

I have obtained a copy of my SSA-831-C3 which is the Disability determination and transmittal.

In section 17 I have the following codes. Diary type - MRP, mo/yr - 07/2019, reason 7.

According to https://secure.ssa.g.../lnx/0426510020 these codes show that I'm "Medical Improvement Not Expected".

This directly conflicts the wording in my TDIU denial. Does this make the cut for a CUE?

No, but it may be sufficient to NOD (you said recently) An argument somewhat in your favor is that the VA tends to disregard SSA results when they are in the veteran's favor, and treat them like gospel when they appear to be against the veteran. Here, probably, the RO didn't bother to look at the SSA code.

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Quote

Entitlement to individual unemployability:

Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.
Although your records from the Social Security Administration (SSA) indicate you are currently receiving social security disability for your back and other osteoarthritic conditions, the SSA records note your disabilities are subject to reevaluation and as such considered not permanent in nature. Based on the evidence received from your VA examinations, the examiner opined that you are capable of sustaining and gaining employment in a sedentary environment that does not involve lifting, squatting, bending or frequent twisting movements. We have considered the following evidence for this decision:

I do not see that VA has actually based the denial of IU on what SSA states.

I do feel that the decision maker at VA considered that in SSA stating you are subject to

reevaluation- the VA decision maker connected that to whether your "back and other osteoarthritic conditions"

were to be considered permanent or not.

It's what's stated by the VA C&P examiner that supports the denial of IU, the rest is just
filler crap.
I feel putting lots of energy into rebutting the SSA part is what they want you to do,
instead of concentrating on knocking down / rebutting what their C&P examiner states about
whether you meet the medical criteria (IU) to work or not.
I feel many times we are purposely lead down the wrong path (by VA) in our disagreements on
our VBA claim decisions -
Gotta keep your eye on the ball -
JMHO
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