Opinions Sought on CUE Argument

[Vinsky54]

My NOD is still pending in Waco. It was filed in April of last year. As it has not been reviewed yet, I can still supplement the record. After reading several of the topics here, I see that there are many willing to help. So, here is the CUE portion of my NOD. Anyone that would be willing to read, comment and make suggestions woould be greatly appreciated.

4.    CLEAR AND UNMISTAKEABLE ERROR (CUE)

4.1    STANDARD FOR CUE

4.1.1    Claimant is aware that the standard for proving CUE is stringent and difficult; that if reasonable persons could reach different conclusions in the review of a claim, that no CUE exists. That is not the case here.

4.1.2    The Court of Veterans’s Appeals has held:

When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly §4061), which states that: (a) In any action brought under this chapter, the Court of Veterans
Appeals, to the extent necessary to its decision and when presented,
shall–. . . (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is `clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” [citations omitted] Look v. Derwinski, 2 Vet.App 157, 161-62 (1992)

5.    GROSSLY ERRONEOUS OR NEGLIGENT READING OF  THE SURGICAL RECORD (Claim File, Operation Report, 20 Jun 77)

5.1    In the 2003 claim, Claimant cited surgical Pyloroplasty and Vagatomy as the proximate cause of his Dumping Syndrome. (Claim date unknown, see footnote 1)

5.2    In or about April, 2003, the VA denied the claim, stating, inter alia, there is “no medical evidence (linking) the disability to laparotomy and vagatomy.” 

5.3    There is no mention or reference to a “laparotomy” in any document submitted by the claimant.

5.4    Given that the Claimant was citing pyloroplasty, even a cursory examination of the surgical record should have included looking for that procedure. A proper reading of the record makes the fact that a pyloroplasty was performed painfully evident; it is even designated as “principal.” 
5.4.1    The Clinical Record Cover Sheet, at section 39 – DIAGNOSES-OPERATIONS AND SPECIALS PROCEDURES states;
“Duodenal ulcer disease with hemorrhage.
18 Jun 77 Pyloroplasty. Principal. Clean.
18 Jun 77 Vagatormy. Associated.” (emphasis added)
There is no mention of a laparotomy.
5.4.2    The handwritten cover sheet, contained in the record, also in section 39 states: “2. Pyloroplasty and vagatomy” Again, no mention of a laparotomy.
5.4.3    The handwritten Clinical Record, Narrative Summary, dated 25 Jun 77, states under HOSPITAL COURSE AND THERAPY WAS: …”Vag & pyloroplasty performed…” Laparotomy does not appear on this page.
5.4.4    The Clinical Record, Operation Report, under OPERATION PERFORMED states: “Exploratory laparotomy, ligation of bleeding ulcer, truncal vagotomy, Heinecke-Mikulicz pyloroplasty.” This is the first and only time laparotomy appears in this record; and it appears in the same section as the description of the type of pyloroplasty used.
5.4.5    The de minimus importance of the laparotomy is demonstrated in next section of the Operation Report, under PROCEDURE. It says: “The incision was made…”; the only reference to that procedure.
5.4.6    In contrast, the record states:
•    “The pyloris was opened between sutures…”
•    “The opened pyloris was packed…”
•    “…so then the opening in the proximal duodenum and distal stomach was closed in a Heinecke-Mikulicz fashion…” (The above-referenced pylorplasty procedure.)
•    “This opening allowed two fingers easily.”

5.5    Though not precedential, the following is instructive in this instance, and contains relevant precedent where the medical record was likely misread:

It is equally possible that the examiner simply misread the relevant service medical records, in which case he did not properly familiarize himself with or base his opinion on an accurate understanding of Mr. McGowan’s medical history.
…
Given this uncertainty, the Board was required to return the examination report to the examiner for clarification. See 38 C.F.R. § 4.2; see also Roberson v. Shinseki, 22 VET.App 358, 366 (2009) (“To be adequate, a medical opinion must be based on a consideration of the veteran’s prior history and examinations and describe the veteran’s condition in sufficient detail so the the Board’s evaluation of the claim may be fully informed.”); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical “opinion based upon an inaccurate factual premise has no probative value”). (emphasis added)
McGowan v. Shinseki, 2011 WL 5903831 (Vet.App.)

5.6    In McGowan the confusion was in trying to determine the difference between a sprain and a strain. One can understand how that can be confused, but in this claim, the difference is between a laparotomy and a pyloroplasty. It is really no different than a veteran who suffers disability from heart-bypass surgery to be told there is no evidence linking the median sternotomy to his disability; or the veteran who has a brain tumorectomy being told there is no link between the craniotomy and his seizures. The error in this claim is so obvious and irrefutable, it must be corrected.
 

[broncovet]

Berta has a valid point.  

[john999]

Have you run your CUE by a veteran's lawyer to see if he/she would take the case?  Now I lost a CUE after almost eight years and a trip to the federal court.  I had a lawyer all the way and we both thought my case was a slam/dunk.  Just wait until you get to Veteran's Court of Appeals if it gets that far.  You most definitely will need a lawyer and even the best ones can lose.  Mine was a very old CUE claim that stretched over almost 40 years.   The laws had changed so often what appeared to be common sense today was not common back in 1972.  AskNod has said to me that if you cannot see your CUE from the moon it will probably not  fly.  It must be very, very obvious with no thought involved.  The COVA knows they screw thousands of deserving ,but they stick to the law and will beat you to death with it.

 

 

                              John

[Vinsky54]

I seem to be in deep s*** here. How ignorant to think the VA was in business to HELP vets. Thank God I have a Congressman (Sam Johnson - TX) that is fighting the good fight. At least we may get some relief after 2016.

Anyway, I am grateful for the input. What I thought obvious (and I have not posted my 2003 claim), was that the Dumping Syndrome was caused by the surgery done at a USAF hospital while I was on active duty. There is no other cause for Dumping Syndrome other than surgery of this type. 

The CUE is based upon the fact that in the initial decision of 2003, they stated the laparotomy was not the cause of my dumping syndrome and that there was no history of it in my service medical record. First of all, the laparotomy was never claimed as a cause - it is simply the incision made to gain access to the abdomen. Of course it didn't cause the syndrome, the pyloroplasty did and that is so evident in the record that a third-grader could figure it out. Regardless, the VA never asked for any further information, never asked for an exam, never did anything else and I let it go. Ignorance on my part, I know. I did not take the time to look up laparotomy in 2003; I just scratched my head and said "all these years I thought I had a pyloroplasty." I have never been one to look for the government to give me anything. That's why I never even made a claim until the syndrome got worse and worse and I was told the only remedy was surgery. I did not believe I should have to pay for that.

Anyway, further ignorance on my part. What is a C & P Exam? And no, I never received a VCAA letter. I have the entire record on file with the VA that I obtained through a FOIA request. They never asked me for anything - and certainly never offered any assistance.

Thanks everyone for the advice and wisdom. Looks like I have an uphill battle. 

[Berta]

John999 long time no see!!!!! Glad you are here.

Maybe you didn't even leave for a while but I am still having problems with the new site format and probably miss plenty here.

And your advise is always good.

Vinsky, ...dont beat yourself up with this  ...the VA wants us to remain in the dark, and so disgusted with denials that we will just give up.

 

The VCAA letter would say to the effect "IMPORTANT REPLY REQUESTED" and there is a deadline for what they say they need.

They could have made a CUE if they didn't even send you one.

I got an illegal VCAA letter in 2005., neve4r complying with the VCAA letter for vet survivors. So they pull that crap too and those errors have caused the backlog and many many remands.

This is what I am not getting...and nothing is over until every stone can be unturned. (some of those stones-IMOs- however can be quite costly but can also be the only way many claimants can succeed.)

You obvious had an  injury, disease, event, that was treated by the Mil.

That establishes your inservice nexus factor. What I don't understand is what caused the dumping syndrome, but some disabilities really have no known cause.

More importantly, did you get continuous treatment for any residuals of the surgery and do you have those residuals now?

The VA should have asked you for all private medical records you had, if they knew you have some. Did you have any VA health care treatment at all?

You said there was no C & P exam...meaning no one at VA gave you a one on one medical exam for this condition. I thought I read in the pdf that they did have a VA opinion....are you saying you were not even there for it?

Is anything regarding this noted on your exit exam for your discharge physical.

Some vets cannot establish any inservice nexus but it seems to me you have that accomplished. The hard part is how much does this disable you now and how can you keep this claim going......to preserve the best EED.

The disability and any residuals have to be clearly explained to them if you file for a Reconsideration and they need proof that ,since the surgery, you still have a condition directly due to this , which is ratable.

The problem with reconsideration requests is this....

I filed 3 CUES in one on a 1998 award letter .VA denied and them appeared to be working on my Reconsideration Request., because I got written rhetoric from them on that, But they were just pissing away my NOD deadline so I had to file the NOD at the last minute.

VA awarded the 3 CUEs but it all took over 6 years....and never went to the BVA , it happened to get to the Nehmer RO,(Phila) from my original RO

(Buffalo)  and the Phila VARO knew how to read.

 

 

 

 

 

 

[Berta]

This fairly recent BVA decision explains what I mean.

The veteran claimed her inservice Gall Bladder surgery with dumping syndrome.

She claimed correctly the actual surgical procedure. Gall Bladder surgery.

The VA had granted her 30% but would go no higher because she did not fit into any higher rating for the dumping syndrome:

http://www.va.gov/vetapp14/Files1/1401715.txt

That case should contain the proper diagnostic code and ratings for  dumping syndrome.

If not you can find them here under the VA Schedule of Ratings section

It is a residual and has to be claimed that way or as secondary to or aggravated by a service connection for the actual surgery,(or all there ways of entitlement should be claimed) and also a scar rating if appropriate.

It is the surgery that they have to service connect, first,  and then any residuals.

 

 

 

 

 

 

 

[Vinsky54]

Berta, you are the best. Thank you for taking all this time.

To answer your  questions -

1. There will be no mention of Dumping Syndrome in my military records. The first time I ever heard the term Dumping Syndrome was about six months after my discharge; when I had an episode so bad I hauled my butt to a doctor. That was 1979. I don't have a clue what that doctor's name was nor if he is even still in practice almost 40 years after this happened.

2. What the AF did to me was the way they treated ulcers back in the dinosaur days. A vertical incision was made in the connection between the stomach and intestines (pyloris). It was then stretched horizontally and stitched. If you read my reference in the NOD to the surgical report, where it says "two fingers fit easily," that's what the surgeon was talking about. Normally, that opening is about the size of your pinky finger. The theory was that acid could no longer pool in the stomach, hence no more ulcers. Problem is, if you eat like a regular person and not like a bird, the opening allows food to pass undigested from the stomach to the intestines. The intestines do not like this; they get very angry, thinking they have been poisoned or worse. They then make every effort to evacuate all that food as rapidly as possible. In the period between 30 and 90 minutes after I eat, the initial reaction is almost identical to hypoglycemia; the heart rate goes crazy, I break into a sweat, get very dizzy and sometimes vomit. That is the alarm. I have about five minutes max to get to a restroom because an uncontrollable explosion is going to happen. There is no way to stop it. The diarrhea is explosive - that is no exaggeration. The cramps quite painful.  I have embarrassed myself in grocery stores, Lowe's, in my car, in a park, you name it. I have to carefully plan a meal anywhere besides home; restaurants are very tricky. Either we sit and wait an hour after we eat, eat a restaurant close to home, or make sure the next destination is very close by. It is ridiculous. The aftermath sucks as well - I am left with a monster headache, lethargic, dry mouth and hungry (if you can imagine that). 

3. There is no extensive record of treatment because, short of surgery, there is none. I have asked doctor after doctor over the years and it is always the same - eat six to eight small meals a day or have the surgery to close up the pyloris.

Thanks again. I had read somewhere that I can request (demand?) an in-person interview with the DRO. True? If so, is it useful? Or does it just delay things further? My NOD is now 10 months old. When I first filed it, the average processing time was right at 10 months, so I am hopeful of a decision rather soon.

(If you want to see what I filed in 2014, I can post it here.)

Edited February 24, 2016 by Vinsky54
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