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The Power Of 38 Cfr 4.6

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Berta

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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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https://community.hadit.com/topic/80260-very-sloppy-lhi-cp-medical-opinion/page/5/#comment-494031

Yippee Vync and Kanenut posted the link- in M21-1MR.

Newest change to adjudication of CUE regulations in M21-1MR.

 

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  • Content Curator/HadIt.com Elder

@BertaThis win was because of YOU and Hadit. The key was your suggestion to explore sumatriptan as a potential cause of my heart attack back in 2019. Who would have thought sumatriptan (used to treat SC migraines) could cause a heart attack?

Quote

DECISION
1. Service connection for myocardial infarction is granted with an evaluation of 100 percent effective April 6, 2019.

REASONS FOR DECISION
1. Service connection for myocardial infarction has been established as related to the service-connected disability tension type headaches (38 CFR 3.310).

A review of the July 20, 2020 VA medical opinion shows that the examiner opined on the wrong condition of atrial fibrillation. 

The list of applicable laws and regulations included 4.6:

image.thumb.png.0aecc46b24b95ded0b5721f9f233d173.png

Because my heart attack occurred just after the 2019 AMA changes, there were repeated errors and it took 20 months to be granted. To put it succinctly, the entire process was totally jacked up.

Below is a very abbreviated timeline of events over the 20 month period:

- Heart attack, surgery, cardio rehab, etc...
- VSO filed claim.
- C&P cardiologist opined atrial fibrillation could not cause TMJ.
- VA letter said my claim was never opened, needed to file the correct form: supplemental.
- Submitted intent to file.
- Via patient advocate complaint I inquired as to why the heart attack happened. VAMC cardiology chief said he saw no issues in prescribing sumatriptan due to the statistical rareness of it causing a heart attack.
- Got a "more likely than not" IMO from a board certified neurology specialist who treated me previously stating although rare for sumatriptan to cause a heart attack, it can still happen. She raked the VA over the coals because they continued to give me the med for years without performing special diagnostic exams required for patients like me with multiple known risk factors and contraindications. She even stated that she would not have expected a cardiologist to be aware of this.
- Submitted supplemental form referencing 4.6 and CUE in the earlier C&P opinion.
- LHI NP did a cardiology C&P opinion a rubber stamp denial opinion ignoring my lay statements and CUE assertion.
- My VSO printed CP& results. Claim was still not decided, so I notified the VA via phone and IRIS that their examiner opined on the wrong condition.
- Denial letter arrived the next week.
- Subsequent calls to the VA said even though I notified them before the decision was made, they could do nothing because the decision was made. Needed to send an HLR or go to BVA.
- Submitted a very clear CUE packet along with an HLR form (just in case they wanted to play the form game again)
- HLR call. They had already read my documentation. Within five minutes they conceded it was a textbook CUE opining on the wrong decision, plus failure to apply 4.6 and other laws/regs. They did let me explain everything to be thorough.
- The award letter arrived a few weeks later granting a single 100% as of the heart attack for three months. It was reduced afterwards to 60% based on imaging which was done after completion of cardio rehab therapy. However, during the initial three months SMC housebound was automatically inferred and granted.
- I eventually returned to work in a sheltered environment (private office) and eventually full time remote.

 

 

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Vync, you are a true Warrior on this stuff!

"The list of applicable laws and regulations included 4.6: "

Because you filed a CUE on it! - otherwise maybe the HLR would not have even picked up on it!

I noticed the BVA hardly ever cites 38 CFR 4.6 because it is basic VA case law 101 and does not involve most of the claims the BVA decides.

Thank you for bringing up the issue you had with that medication here.

It sure might help someone else here or reading, as a guest ,who has not considered their disability might be directly due to a VA medication,if they cannot find a inservice nexus.

We have great people here ,like you , Vync, who help so many others.

You prove that no one should  ever give up and if they need an IMO/IME, there is no way around getting one because it might be the best Investment they ever made!

I paid thousands for my IM0s for my AO DMII death claim , so I dont suggest what I have not done myself, and that is where we really get a "thorough and conscientious " reading of or evidence....as 38 CFR 4.6 says we all should get, but VA, too often, overlooks that. 

Would the new Cardio regulations help you get the 100% back?

I dont know if those regs would support a CUE for more retro- as I understand the way they were written-something to really think about.........

 

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  • Content Curator/HadIt.com Elder
1 hour ago, Berta said:

Would the new Cardio regulations help you get the 100% back?

I dont know if those regs would support a CUE for more retro- as I understand the way they were written-something to really think about.........

I would have to take a look at the criteria, but don't know if it would make any real difference because I was already 100% P&T for years prior.

I'm scratching my head about SMC-S housebound though. Years ago the VA doc wrote my employer a letter saying I needed to be put into a private office where I could close the door to help alleviate issues related to my SC disabilities. My employer eventually did that. Since covid, I have continued to be full time remote from home. I recall some info about a court precedent allowing SMC-S housebound for vets who continue to work in a sheltered environment. It makes me wonder if the VA should have inferred that back to when they wrote the letter to my employer or when the court ruling went into effect... I know it's not related to 4.6, but because of our experiences with the VA failing to consider 4.6, they likely also failed to infer that also.

 

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