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Berta

The Power Of 38 Cfr 4.6

Question


I mention here ,from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think VA makes more CUEs regarding this regulation, then we know.

One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct

(if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, ,and, back to BVA scenario )

VCAA letters are different fopr survivors then for veterans...I made that point here in past posts.

and then whether the decision contains a CUE......do most vet reps really check those important points?



“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6


A violation of this regulation can be a basis , within or out of the apellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on.

I was going over my pending CUE based on this regulation, (38 CFR 4.6 ) I almost forgot I had cited a BVA decision that ,because it is a legal decision and not medical, and explains what I mean.Also theBVA decision cited VA case law that I didnt have to reiterate.

In part:
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra.

This error is significantly more than a disagreement as to
how the facts were weighed or evaluated. Crippen, supra.
Rather, it was a denial of the existence of facts of record.
Moreover, a persuasive reason has been given as to why the
error manifestly changed the outcome. This reason is that
had the error not been made, a compensable rating for
irritable bowel syndrome would have made effective the day
following separation from active military service, rather
than the day that a VA outpatient treatment report noted
irritable bowel syndrome. This review for CUE is based
solely on the evidence of record at the time of the February
2000 rating decision. Russell, supra.



In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted."

CONCLUSIONS OF LAW

1. The criteria for a 30 percent schedular rating for
irritable bowel syndrome with gastroesophageal reflux are
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10,
4.114, Diagnostic Code 7319 (2008)."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files5/0844495.txt


Evidence in the record at time of the alleged CUE decision,
violation of basic VA case law,regarding evidence, in place at time of the past decision
proof of a ratable condition at time of the alleged CUE decision,
and a proven manifested and altered outcome...meaning more retro is due the vet (in this case back to the day after his discharge.....1989.

I am glad I found that I had used this decision in my pending claim because maybe it will help others to understand how I have been successful with both types of CUE claims.

But besides using this decision,in my claim, my evidence is relevant and probative and fits into the entire gamit of CUE regs, as above.

It is evidence that was in VA's possession at time of alleged CUE decision, and ignored completely by the VA.

The manifested outcome, I stated to VA, is 100% P & T ,1151for 16 additional months, due the veteran, plus one spouse, one child.Plus SMC S for those 16 months.

This is also an example of why every surviving spouse should substitute themselves ASAP for any claims the veteran had pending at death.

And aggressively fight over any decisions that contain CUE to their detriment.


Edited by Berta
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Good info Berta!

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Now I have a question. The RO's decision letter on my AO IHD claim listed my METS as 10. My C&P exam listed my METS as 2.3 the C&P doctor got the METS from a recent stress test. I was awarded 10% due to "continuous medication required". Also, the decision letter stated: "You denied experiencing symptoms of dyspnea, fatigue, angina, dissiness or syncope with any level of physical activity". My stress tested noted that I experienced "dyspnea".

I submitted a Notice of Disagreement . . . should I have submitted a CUE?

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It is hard for me to tell.....

In the NOD,. if you raised any medical evidence that warranted a higher rating for the IHD, based on the VA Schedule of Ratings here at hadit, I dont think you would need to file CUE.

However you could search for the CUE info here I posted as to filing a CUE within the appellate period.

For my pending claim, I filed both ways.

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This is exactly what happened to me Berta. I filed in 1983, but was denied because I used Systemic Residuals due to AO Exposure. The records show urticaria-unspecified as the reason for my skin disease. The affected areas were every item mentioned in the P3 for "physical capacity and stamina" right down to the letter. They documented everything themselves and had the evidence on hand, but denied everything. I have documents for every condition and finally just got some of them a few months ago, after dozens of FOIA Requests. Several diagnosis shows organism undetermined or unspecified.

i had been exposed to something they were not familiar with, or had never seen, and I had all the characteristics of AO Exposure. I did not receive the ""over 120 days recovery"" that was ordered for when I returned from Vietnam after a month of hospitalization. I was ""permanently affected"", and had some sort of board after ordered to active duty following being sent ""HOME AWAITING ORDERS"". I thought I was to have over 120 days recovery, and would medically retired, but I was ordered to active duty instead. I got no counseling at all, was basically led to believe it was some sort of disciplinary board, and may be discharged other than honorably. I should still be recovering at that time because I was still ill, and got worse all the time on duty. Every organ and every system was compromised by the exposure, it is being reviewed again now, and I hope this 4th time they see their oversight and incorrect award. Thanks. 

PS. Here is another condition I had, and it has affected me my whole life, and now the lungs are partially collapsed causing permanent shortn SS of breath. I believe this happened in Vietnam, and kept recurring all my life.

image.jpeg

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On 1/25/2015 at 8:29 AM, Berta said:


I mention here ,from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think VA makes more CUEs regarding this regulation, then we know.

One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct

(if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, ,and, back to BVA scenario )

VCAA letters are different fopr survivors then for veterans...I made that point here in past posts.

 

and then whether the decision contains a CUE......do most vet reps really check those important points?

 



“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6


A violation of this regulation can be a basis , within or out of the apellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on.

I was going over my pending CUE based on this regulation, (38 CFR 4.6 ) I almost forgot I had cited a BVA decision that ,because it is a legal decision and not medical, and explains what I mean.Also theBVA decision cited VA case law that I didnt have to reiterate.

In part:
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra.

This error is significantly more than a disagreement as to
how the facts were weighed or evaluated. Crippen, supra.
Rather, it was a denial of the existence of facts of record.
Moreover, a persuasive reason has been given as to why the
error manifestly changed the outcome. This reason is that
had the error not been made, a compensable rating for
irritable bowel syndrome would have made effective the day
following separation from active military service, rather
than the day that a VA outpatient treatment report noted
irritable bowel syndrome. This review for CUE is based
solely on the evidence of record at the time of the February
2000 rating decision. Russell, supra.



In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted."

CONCLUSIONS OF LAW

1. The criteria for a 30 percent schedular rating for
irritable bowel syndrome with gastroesophageal reflux are
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10,
4.114, Diagnostic Code 7319 (2008)."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files5/0844495.txt


Evidence in the record at time of the alleged CUE decision,
violation of basic VA case law,regarding evidence, in place at time of the past decision
proof of a ratable condition at time of the alleged CUE decision,
and a proven manifested and altered outcome...meaning more retro is due the vet (in this case back to the day after his discharge.....1989.

 

I am glad I found that I had used this decision in my pending claim because maybe it will help others to understand how I have been successful with both types of CUE claims.

 

But besides using this decision,in my claim, my evidence is relevant and probative and fits into the entire gamit of CUE regs, as above.

 

It is evidence that was in VA's possession at time of alleged CUE decision, and ignored completely by the VA.

The manifested outcome, I stated to VA, is 100% P & T ,1151for 16 additional months, due the veteran, plus one spouse, one child.Plus SMC S for those 16 months.

 

This is also an example of why every surviving spouse should substitute themselves ASAP for any claims the veteran had pending at death.

 

And aggressively fight over any decisions that contain CUE to their detriment.

 

 

 

 

 

 

 

POWERFUL POST!!! Thank you!! 

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