Inadequate For Rating Purposes & Cue

[elcamino_77us]

Good Evening,

I'm in the process of going through all of my Decisions, SSOC's and C&P Exams, notating all of the problems, untruths and anything else that's incorrect. My first two C&P Exams failed to address DeLuca and my BVA of 2005 remanded my case for a third C&P Exam since neither of my previous Two C&P Exams addressed DeLuca. Considering this, my thinking tells me that any conclusions based upon prior inadequate information by either the Examiner or the RO/BVA would be grounds for CUE.

Any Thoughts???

[Berta]

"Considering this, my thinking tells me that any conclusions based upon prior inadequate information by either the Examiner or the RO/BVA would be grounds for CUE."

Possibly, Yes ..... in any older denied decision that was not appealed

This might help:

"The decision in Gerald Cullen v. Eric K. Shinkseki, Opinion Number 08-1193, decided August 13, 2010, is an excellent illustration of how the Board of Veteran Appeals can error in applying the DeLuca factors."

http://thomasandrewslaw.blogspot.com/2010/08/cullen-deluca-applied.html

In this succesful BVA CUE that Carlie posted here:

"As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). "



The DeLuca factor is well established VA case law and a legal error (CUE) has occurred , if the VA should have considered DeLuca and didnt.

Of course the medical evidence had to have been established at time of the alleged CUE and in VA's possession, and that the legal error manifested an altered outcome to the claimant....meaning, if the error had not been made, the VA owed the claimant cash.at time of the decision containing CUE, which can only be recovered by filing a CUE claim against that decision, with the same VARO that made that decision.

Go for it!

[elcamino_77us]

Thanks Berta,

Earlier today, I stumbled upon an interesting Case "Citation NR: 9623880." I pretty well blew me away.

The VA examinations of May 1990 and January 1992 are less than adequate in that such examinations relied exclusively upon a purported history provided by the veteran, and the examiners clearly did not review the documented medical history and clinical evidence contained in the claims folder. The Court has held that the Board correctly rejected a medical opinion where “the conclusion reached by the physician [was] clearly based on the history provided by the veteran.” Reonal v. Brown, 5 Vet.App. 458, 460 (1993). “[The] Board [is] not bound to accept opinions of two physicians who made diagnoses ... almost 20 years following appellant’s separation from service and who necessarily relied on history as related by appellant.” Reonal, supra; Swann v. Brown, 5 Vet.App. 229, 233 (1993). The presumption of credibility of the evidence does not arise where the examining physician relied upon the appellant’s account of his medical history and service background ....[and] “An opinion based upon an inaccurate factual premise has no probative value.” Reonal, supra.

A General Counsel opinion, issued in July 1995, held that, pursuant to the statutory duty under 38 U.S.C.A. § 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court interpreting that duty, a Department of Veterans Affairs examiner must review a claimant’s prior medical records when such review is necessary to ensure a fully informed ... examination or to provide an adequate basis for the veteran’s findings and conclusions (emphasis added). VAOPGCPREC 20-95 (O.G.C. 20-950).

In that connection, the Court has held as follows: A VA examination which failed to include a review of all of the veteran’s medical records [was] in violation of the duty to assist. Culver v. Derwinski, 3 Vet.App. 292, 299 (1992). “The examiner must have the full medical record of the veteran prior to making the evaluation.” Shoemaker v. Derwinski, 3 Vet.App. 248, 255 (1992). “In order for [VA] to fulfill its duty to assist ... a thorough contemporaneous medical examination, one which takes into account the records of prior medical treatment, [is required] so that the evaluation of the claim[ed] disability will be a fully informed one.” 38 U.S.C.A. § 5107(a); Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In remanding for another [psychiatric]evaluation because “apparently the claims folder was not reviewed by the examiner”, the Court held that “t is ... essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.” 38 C.F.R. Part 4,§ 4.1; Tucker v. Derwinski, 2 Vet.App. 201, 203 (1992).

I went through my 2008 BVA and it contained alot of errors as the Rater of whoever used alot of info from my first two C&P's which the 2005 BVA had ruled as Inadequate for rating.

I will take a look at the cases you pointed out this weekend.

Again Thanks Berta!!!

Bill