Misread Smr Notes

[Snake Eyes]

In my original denial for sleep apnea in 1992, the letter said by my own statement, I had sleep apnea all my life. They also alleged I did not appear for a C&P exam (which was scheduled after the denial date -- and I appeared.

C&P did not address sleep apnea, so I think they denied it bases on my alleged statement.

I had this reopened in 2012 and received my award letter last month. Basically, what happened was the treating doc was addressing two complaints -- sleep apnea and a rash on my chest. He wrote down notes about the OSA then asked me how long my left side had been larger than the right (to see if it had anything to do with the rash). I replied that I had that as long as I could remember.. And he wrote, "pt says has had all his life", then went back to talking about the sleep apnea.

I won by showing from family and buddy statements that I didn't have OSA early in service but did have the lopsided chest.

Seemed to me it was an honest mistake by the rater in reading my record... VSO agreed, but a doc recently suggested it might be a CUE. Any thoughts?

[Vync]

Hi Snake Eyes,

I smell old school VA BS. The VA loves to use self-reported statements against the Veteran, even if they have no objective evidence to back it up.

Presumption of soundness

When you joined the military they performed an entrance exam. Any pre-existing conditions would have been noted. If a condition was not noted during your entrance exam, unless it is extremely obvious, like a scar, if there is no objective evidence, the VA is supposed to presume that you did not have it.

I am considering a CUE for similar reasons as you - self-reported subjective statements treated as BS objective evidence to deny a Veteran's claim or reduce a rating.

In my case, one of my ratings was reduced from 30% to 20% because the VA claimed it was a pre-existing condition. I went back and checked my entrance exam, but only glasses and acne were objectively marked. I scoured my medical records and found only one instance where the doc said I stated having the condition when I was a child and the text matched what was in the award letter. The VA quoted that statement as their justification for their rating reduction. There was no objective indication that the Army doctor reviewed my childhood medical treatment records and noticed I was diagnosed with a condition. It was only a subjective reading of my records. I assume I probably mentioned it in passing during an exam and the doc just wrote it down. This claim was filed in 1995, so the same BS rules in effect prior to 2000 were likely applied to both of our claims.

I did some research and found a Veteran who had a similar situation and actually won his CUE. Of course, we don't have access to all of the facts specific to this Veteran's case and I doubt this is a precedent-setting case, but the general CUE principles appear to be here. The VA denied him because of self-reported pre-existing condition. The ruling said that because of the presumption of soundness and no objective evidence was present, they reversed the pre-existing ruling.

http://www4.va.gov/vetapp10/files5/1040625.txt

BVA case - SC for psoriasis was granted, pre-existing condition ruled out

FINDINGS OF FACT

1. There is not the required clear and unmistakable evidence the Veteran had a pre-existing skin disorder such as psoriasis when entering the military, only his self-reported history of the condition preceding his service by some 6 to 7 years, so it must be presumed he was in sound health when entering service - especially since there was no objective indication of such a disorder when examined in anticipation of entering the military.

2. The first objective indication of psoriasis was during the Veteran's service and, indeed, the reason for his premature discharge.

3. The medical evidence is at least in balance for and against the claim as to whether this condition was first shown in service and insofar as whether it has persisted during the many years since.

[Snake Eyes]

Thanks for sharing. It seems a similar case to mine, and particularly favorable given that it was a misinterpretation of evidence later proved in my favor when the claim was reopened. I may have an attorney look into it. My VSO didn't seem to think I had a leg on this one. :-)

[Berta]

It is certainly possible the RO committed a CUE in the 1992 decision.(I assume this was a RO decision and not a BVA decision ?)

Anyone who succeeds in getting an award for a claim that was previously denied and unappealed, should go over the denial very carefully.

It just makes sense. If VA finds you have a SC condition that they denied long ago, for the same condition, you didn't get the SC condition when you filed a re-opened claim...you had it since service.

But CUE doesn't work in every case...it depends on whether the now SCed condition was ratable at least at 10% at time of denial and VA had ,in their possession, evidence significant enough to have awarded the claim in the past.

If you can scan and attach the 1992 denial here,as to their Reasons and Basis, we can advise better..

(Cover C file number, name, address etc before scanning it)

A recent OIG report stated that NY VARO , in a review by OIG of 90 claims, made errors in 30% of them.

I have seen successful CUE awards going back for decades.

We have a lot of info here in our CUE forum.

Edited July 2, 2014 by Berta

[Vync]

Berta,

The tricky part for Snake Eyes and myself is that back in the early to mid-1990's, the denial/reduction justification text is typically very minimal. Back then, they did not have the duty to assist.

I don't want to hijack Snake Eyes' topic, so I will move my CUE questions to a new CUE topic.

Snake Eyes,

Yeah, I thought it seemed similar. Berta is right that more info about the wording/situation is needed to help you further. I thought that BVA claim I linked sounded awfully familiar to your situation. Definitely try to do a lot of research before you commit to moving forward. One thing I learned here is to make sure your evidence is solid, clear, and to the point. Don't give the VA any reasons for them to delay or deny.

[john999]

The VA can even get IME's mixed up in a VA claim. I had a claim in for TMJ and for increase in mental health condition. The VA used the dentist's statement in my mental health claim and the psychiatrist's statement in my dental claim. Needless to say I lost both cases. I have a CUE going to federal court in which VA tried to use self-reported statements the VA says I made showing I had a personality disorder instead of genuine mental health condition. They will play dirty and will make it up along the way.

[Snake Eyes]

It is certainly possible the RO committed a CUE in the 1992 decision.(I assume this was a RO decision and not a BVA decision ?)

Anyone who succeeds in getting an award for a claim that was previously denied and unappealed, should go over the denial very carefully.

It just makes sense. If VA finds you have a SC condition that they denied long ago, for the same condition, you didn't get the SC condition when you filed a re-opened claim...you had it since service.

But CUE doesn't work in every case...it depends on whether the now SCed condition was ratable at least at 10% at time of denial and VA had ,in their possession, evidence significant enough to have awarded the claim in the past.

If you can scan and attach the 1992 denial here,as to their Reasons and Basis, we can advise better..

(Cover C file number, name, address etc before scanning it)

A recent OIG report stated that NY VARO , in a review by OIG of 90 claims, made errors in 30% of them.

I have seen successful CUE awards going back for decades.

We have a lot of info here in our CUE forum.

Hi Berta,

Thanks for looking this over. Of interest in the sleep apnea case, the alleged self-report that I had apnea all my life (it was actually referring to a lump in my breast), the consult done in the same session clearly states I told them I had it "2 to 3 years" and that my wife told me I stopped breathing.

On the issue of failing to report for C&P exams, I'm confused by that one as I attended the November exam they cited in the denial letter as well as exams in March (after the denial letter). In one of those exams, the Dr. noted the impression of sleep apnea but indicated a pulmonary consult would be needed to see if the VA could help. To my knowledge, no pulmonary exam was ever scheduled.

The bilateral knee condition was denied based on failure to appear for an exam -- the exam I didn't appear for showed a bilateral patellofemoral condition. I found out a year or so ago that I had been rated "Zero Percent" on the knees all along, but never received a separate award letter -- maybe they didn't send letters for zero ratings back then.

The back issue resulted from X-Rays being taken incorrectly (they X-Rayed mid lumbar section and the doctor examining the X-Rays from the exam I allegedly didn't appear for pointed out that they did not do a coned-down picture of the L-5/S-1 region (which was in question) and rendered a report that everything was normal.

Finally, on the issue of mental health exam (called "nervous condition", they stated that no specific psych dianosis was made in-service. However, about a year of triage notes (only indicating that I had therapy or attended group therapy) and an MMPI evaluation were available in the record. My C&P shrink did not ask any questions related to my medical record and instead focused on the claustrophobia aspect of my issues. Again, I DID make these appointments, otherwise the VAMC would not have been able to send me the reports. It looks like the VARO denied the claim based on C&P exams I was not told about, but no record exists that I was contacted -- no mailings or notations in the record that indicate additional exams.

Someone smarter than I cold probably pull one or more CUEs out of this crazy decision letter when paired with the C&P exam reports that were issued later in the month. As for me, it's a LOT of bloviation and legalese.

QUESTION ON THIS TOPIC: Suppose they found a CUE for one or more of these issues.... what benefit would it be to me as a military retiree to pursue it? Would I not be putting my current rating at risk by bringing these issues up?OriginalDenials.pdf