A Cue Daisy

[FormerMember]

Here's a CUE that may not be viable. Or is it? History is as follows.

9/2008 -- Porphyria Cutanea Tarda (PCT) secondary to HCV granted at 10% ( scarring -DC 7815)

3/2010-- On DRO Review, DRO reduces 10% scarring rating to 0%. No notification other than SOC (remember-an SOC may not be used to announce a decision)

3/2010-- same DRO decision grants 40% for phlebotomies.

6/2010-- failure to submit Form 9 within 60 days results in finality. Equitable tolling request for being inpatient at VAMC until late April 2010 is never addressed.

5/2012-- BVA decision denies earlier 1994 effective date for HCV. Does not mention PCT

6/2012-- File NOA of EED denial at CAVC

8/2012-- CUE claim filed over 3/2010 improper reduction of 10% to 0% with no notice and no C&P exam to determine validity of reduction

4/2013-- CAVC -- VA agrees to 1994 Effective date for HCV. JMR sends claim back to BVA for decision complying with terms of JMR. Claim will then have to go to VARO for staged Fenderson rating

6/2013-- VA status of 8/2012 CUE filing moves forward to Gathering of Evidence stage and farmed out to Wisconsin from Seattle.

So, playing Devil's advocate, if VA fails to adjudicate the CUE before April 2nd, 2014 and my PCT rating secondary to HCV crosses over twenty years- is it a protected rating for scars at 10%? They awarded 40% under DC 7704 (DC7815-7704) for the phlebotomies when they reduced the scarring from 10% to 0%. The two ratings are not pyramiding as they involve two different bodily systems. PCT scarring is skin. Phlebotomies is Hemic (blood). The bingo date was April 1, 1994 for my filing EED. HCV will revert back to the older, more liberal DC 7345 code. Looking at the regulation for reducing a rating, it does not differentiate between a rating being reduced during an active ratings claim or one that has been in existence for some time. By granting the 10%, it becomes a finding. To overturn it as being unjustified, they must prove it was fraudulently obtained or they themselves made a mistake. Then the full weight of CUE descends and they have to overcome their own finding based on CUE regs in 20.1403. By failing to have a C&P and give me ample warning, they themselves already erred in the de novo DRO review..

But with a JMR, the claims is now magically alive again and it is now November of 1994. I have just submitted proof of AO exposure and Hep in service. Since VA has already granted my claims in 2008, this is merely a formality that rates me contemporaneously based on my medical records. Here's the problem. Technically you cannot CUE a claim that isn't final. So, is a claim declared dead and final in 2010 "CUEable" in 2012? And, if so, at what point does it have to meld with the contemporaneous, staged Fenderson reconstruction and be incorporated if the CUE claim is is being adjudicated far away in Wisconsin?

This is worse than Back to the Future. I'm just dying to hear what some of you think. I have to call them on the 10%<0% reduction. They say(said) it's final. CUE is the only way to disturb it. If I drop it, VA will never incorporate it into the staged rating. Now, to add insult to injury. scars of the head and neck are rated under a different diagnostic code separate from the rest of the body. Yep. VA ignored that one. But now that it is November 1994 again, can I not add that contention in and have it considered in the proposed staged rating. I've been rated for scarring, just not all of it...and it was announced and removed in an SOC.

Jez, where do you start on how many regulations were violated?

[Berta]

“CUE claim filed over 3/2010 improper reduction of 10% to 0% with no notice and no C&P exam to determine validity of reduction “

“By failing to have a C&P and give me ample warning, they themselves already erred in the de novo DRO review..”

Sounds like that to me too........

“Jez, where do you start on how many regulations were violated? “

That is the Fun part.

Did they break this regulation by failing to inform you of the proposed rating:

Authority: 38 U.S.C. 5112(b)(6) )

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

(aka 38 CFR 3.105(e))

Did they change the diagnostic code on the reduction decision?

Did the VA have possession of medical evidence that warranted a continuation of the 10%?

If they did, and did not consider the evidence they had that would not have warranted a reduction ,they violated the basic tenets and fully established VA case law within 38 CFR 4.6.

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

“Then the full weight of CUE descends and they have to overcome their own finding based on CUE regs in 20.1403. By failing to have a C&P and give me ample warning, they themselves already erred in the de novo DRO review..”

CFR 20.1403:

http://www.law.cornell.edu/cfr/text/38/20.1403

BVA Motions for Cue quote this reg. ( the 1992 date derives from the Bell V. Derwinski decision)

This is basically what we use at VARO level for CUE claims filed under 38 USC 5107 (B).

Personally I like the M21-1MR rendition of CUE::

“A CUE exists if

• there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

• Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

• VA overlooked material facts of record, or

• VA failed to apply or incorrectly applied the appropriate laws or regulations.”

M21-1MR, Part III, Subpart iv, Chapter 2, Section B, (under Part 7)

Also a CUE must have manifested an altered outcome...meaning their error cost you some cash.

I dont know how that plays into a protected rating here. Hopefully others will chime in on that..

But I thought a proposed reduction had to be made on a current C & P exam result????

I dont get that.

Do you have any time dated personal photos showing the PCT scarring prior to and then after the reduction?

I am not sure how that could be used as evidence, but then again, the VA proposed to reduce my husband's SC comp in 1989 and I used their regs and basic common sense to prepare his NOD and 8 months later they dropped the reduction idea when they read the NOD.

VA had used a recent C & P (but I was present and testified in the NOD statement that the C & P shrink never had his C file present ...they couldn' t find it the entire time we were at Canadaigua VA. He had to go there because he worked at Bath VA and apparently the C file was never sent to the other VAMC for the C & P)

Also they based their proposed reduction on his,at that point, one Semester of Voc Rehab ,which sure didn't turn him into a rocket scientist (exactly what I stated in the NOD) and they used his employment at the Bath VA as “substantial gainful employment”.

That also was a joke. We had to fight over this employment as the VA discriminated against him regarding a fireman's position telling him he was not qualified for it (we had the OPM statement that he was) because in those days they hired relatives over disabled vets. The director (I made a big stink) gave him a temporary PT VA Job so he would not file an EEOC complaint, until another full time job came up.

My husband was a former Nuke...substantial and gainful VA employment ? What a crock.

I enclosed the regs describing substantial and gainful employment , the proposed reductions regs, and he signed the NOD but I signed my swore statement that the C & P had no validity because the doc had no C file and really no proof he even had PTSD.

To the Equitable tolling question:

Not many “ good cause” claims granted at the BVA but here is one of them:

“he has indeed shown good cause for his failure to file a timely substantive appeal in his challenge to that June 2007 rating decision, in that his life-threatening illnesses at the time created extraordinary circumstances that directly resulted in his failure to timely file.”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files5/1235717.txt

Most CUEs, in my opinion, are due to diagnostic code errors and violations of evidentary regs within 38 CFR 4.6.

I got them on violating a mandate too, 3 CUEs in one,filed in 2004, granted 2012.

SMC consideration is not only a regulation but is mandated by Statute.,whenever the medical evidence warrants it to be.

Section 1151 awards are not exempt from SMC consideration either.

[john999]

Who is your lawyer?

[FormerMember]

Our good friend Law Bob Squarepants of SVR fame is my atty. on this. Who else? He's having Back to the Future problems with it too. He says press on in Wisconsin until VA figures out they have the same claim stream running on two different channels. I filed this on my own. I think he should grab the reins. I have thirty days to get it together and respond. I've been assembling all the usual suspects like 3.103(b)(2) and 3.105(d),(e). Bob is still running the EED for the 1994 show and awaiting its transmittal from the CAVC to the BVA and thence to the Seattle RO.I'm dabbling in this one pro se but I think he should hop in the driver's seat. We're talking 20% (HCV), 10% tinnitus, 40% PCT, and now 10% for scarring plus ?% for scarring of the head, ears and face and all of it back to 1994. Toss in my back % when I prevail on that to 1989 and it may be TDIU from 199something. Being self-employed, my income was rather spotty over the intervening years and well-documented by SSI. This is one of those rare cases where all the little %s may add up to something significant when buttressed by the 40% bulwark which permits IU.

Something to consider- during an active rating period when a claim is still being "fleshed out" with a percentage, I have never read of a rating being reduced to 0% and another (different) DC substituted in its stead that was not in the same DC schedule (i.e 20% vs 40% for DM2). As I pointed out, hemic and skin are two dissimilar fields and do not pyramid one another. That is the crux of the contention. To increase (or decrease) the rating is all well and fine unless there is no basis in medical fact to do so. My scars never "resolved". They are still visible. VA also failed to consider the scars on my neck, face and ears. Ergo- I have hep C @ 20%(old DC 7345); I have scars @ 10%; I have phlebotomies @ 40%. In addition, have facial scars @ ?%. VA says claim is dead for failure to file my F-9 by 5/29/2010. Meanwhile the OGC are in DC fabricating a plan for EED of 4/01/1994 for the HCV and PCT and no doubt a long, drawn out battle for a lowball Fenderson.

The 10% for scarring was granted 10/1/08 effective 3/01/2007. It was reduced to 0% on 3/29/10. VA then substituted 40% for phlebotomy on the same date (effective 3/01/2007). But 3/01/2007 has now metamorphosed into 4/01/1994 as the effective date due to CAVC JMR and OGC acknowledgement of 3.156(b) error. Meanwhile, the Seattle RO continues to hold that the very same PCT claim died on 5/29/2010. Confused yet?

So, can you CUE a final claim that is busy being resurrected and readjudicated at another AOJ?

And can VA reduce a rating to zero and then substitute another, completely different Diagnostic Code in its stead? All without notifying the claimant that they're getting ready to 86 it in violation of 3.105(e)?

An important precept of VA law is that once a rating is issued, it is inviolate. It's called a finding. If VA wishes to rescind it, they have to prove they did it in error and you are not entitled to it. That's why they have a time out and get three signatures on these things before they push print. It's called quality control. The hook is that to overturn it, they have to jump through the same "manifestly different outcome" test we do in a CUE. My scars are still present and accounted for so the original rating was not in error. A manifestly different outcome would not have ensued.

As for etiology of scarring, they are all documented (the major ones) by medrecs and thus "time dated". Most occurred between 1994 and the present. With the older 1994 effective date, VA is going to have a hard time arguing as to when they occurred. They're there-large as life and twice as natural. Being a credible witness, they occurred pretty much when I say they did. Based on the Layno v. Brown (1994) decision, I am capable of discussing when I dropped the beam on my foot and squished 3 toes or getting whacked on the back of the ear with a 2X4 in 1996 that required 39 stitches.

Onward-Back to the Future. Ignorance is bliss.

[Berta]

ASKNOD has a GREAT lawyer , Bob Walsh. His SVR shows are in our SVR archives.

“So, can you CUE a final claim that is busy being resurrected and readjudicated at another AOJ? “

Odd question.....odd answer....

A CUE claim must be filed against the same RO that made the decision that is now final.

Or, if the claimant feels BVA committed CUE, in a final BVA decision ,the CUE claim must take the form of a Motion and then be filed at the BVA.

There is some info in this BVA Motion for CUE decision:

“The Board has original jurisdiction to consider motions for revision of prior Board decisions. Motions should be filed at the Board, but requests filed elsewhere within VA and transmitted to the Board shall be treated as if filed at the Board. 38 C.F.R. § 20.1404©, (d). The regulations codify the current requirements for a CUE motion that the Court has defined for motions of CUE in Board decisions as: “ etc.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files2/1312550.txt

The 38 CFR 20.1404 contains the info on how the motion should be prepared.

As the decision states , the VCAA is not applicable to any CUE claim.

As to your question, my SMC CUE was adjudicated at the Phila Nehmer VARO, after Buffalo RO ( the actual AOJ) had it for almost 8 years and it was finally set for BVA transfer. But I brought up this CUE as having bearing on my AO IHD claim there at Philadelphia under Nehmer, as well as the fact that the longstanding CUE claim should be adjudicated prior to or along with the AO IHD claim.

My initial 2012 decision from the Nehmer VARO was a denial, and I faxed them to CUE themselves on that decision immediately (not the traditional CUE claim we are discussing here)and they did in 3 weeks asnd also adjudicated the CUE claim and awarded it.

I got lucky because ,although the rater in the denial used an absurd premise to deny the claim at first, I did have a feeling most of the Nehmer people could read and thus they properly awarded the SMC CUE.

I am not saying that Buffalo didnt attempt to pretend to 'adjudicate' the CUE, they did all they could do, to deny it , even making up a regulation at one point.

But this was an unusual situation.....

The original CUE claim was filed against the AOJ that made the decision I cued.

I was not sure Phila would even attempt to deal with it but they did.

It pays to tell them what we want.

“And can VA reduce a rating to zero and then substitute another, completely different Diagnostic Code in its stead? All without notifying the claimant that they're getting ready to 86 it in violation of 3.105(e)? “

I dont see how... if the medical evidence warrants a rating higher then Zero.

This is a diagnostic code error CUE claim Carlie posted here in the CUE forum;

Retro back to 1969.

In my case my SMC CUE contained three charges of CUE, one as to my husband's undiagnosed and untreated (FTCA/1151) IHD from AO in Vietnam.

The 1998 decision contained no reference at all to his his IHD ,no diagnostic code and no rating percent on the 1998 rating sheet , although the award statement for DIC ,in the decision ,clearly stated his misdiagnosed heart disease had contributed to his death.

An improper diagnostic code or the complete lack of a diagnostic code can be a valid basis for a CUE claim. A few diagnostic codes, however have4 changed overt the years and the evidence must be ased on the DCX VA used at the time of alleged CUE.

The Bryan Myler case is one of my favorites.

He pursued a CUE claim all the way to the CAVC regarding a wrong diagnostic code and wrong % evaluations on residuals of a GSW.

The whole Court case is here:(COVA Court of Veterans Appeals in those days)

“CONCLUSION


In its decision of August 18, 1988, the BVA properly applied the regulations to the facts of this case and awarded this veteran a disability rating of 30%. The failure of the rating board to have done the same thing in its rating of November 24, 1953, was "clear and unmistakable error". 38 C.F.R. ù 3.105(a). Therefore, we REVERSE the BVA decision of June 7, 1990, which upheld the VA's denial of "clear and unmistakable error" and we REMAND with instructions that the veteran's rating of 30% be given "the same effect as if the . . . decision had been made on [November 24, 1953]." 38 C.F.R. ù 3.105(a) (1991). “