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.
 

[Berta]

I suggest you go to the BVA web site http://www.index.va.gov/search/va/bva_search.jsp?QT=dumping+syndrome&EW=&AT=&ET=&RPP=10&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

That will bring up 3 recent decisions on "dumping syndrome." that I put into the first search box.

Then use the search feature again:

http://www.index.va.gov/search/va/bva.jsp   putting dumping syndrome into the first search area and then your actual cause for the operation and/or any other words to expand the search and many claims will pop up. I was surprised at how many claims were at the BVA for this residual.

Read denials as well as awards. This might help you understand how the claims were filed, and then why they were awarded, remanded or denied.

"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. "

Those doctor's visits  are treatment records that might have noted why you were there.

There has been discussion here on continuity of symptoms as opposed to continuity of treatment....and that lay statements can prove continuity of symptoms..true .....but then again, sometimes vets use OTC stuff to self medicate and how many of those vets keep all their OTC purchases receipts? How many have spouses or  others they know ,who are willing to testify to their symptoms as a buddy statement for a VA claim?

I have succeeded in many personal claims dating back to the 1990s.None of them were easy.( accept for what should have been the most difficult one of all- FTCA case-) and that is because VA lawyers can read.

 As soon as BVA decisions were available on line, many years ago , I started to study them and still do every week.

BVA decisions reveal the way an entity higher than the ROs 'thinks' and applies the regs and evidence to each individual case.

BVA is full of excellent paralegals and lawyers who ultimately make the BVA decisions.

Not every vet can prove continuous symptoms and/or continuous treatment.

But neither of these factors is the sole reason that anyone should give up.

Vets here who have succeeded have done the leg work, research, and even spent IMO cash to get what they deserve.

I hope you don't have to file a new claim for the actual surgical condition and hope others will chime in as to what you should do next on getting the claim.

Was anyone on your POA? I forget if the decision mentioned a POA.

Whether you had POA or not I suggest you get one.

If you did have one, they do not seem to understand the claims process at all.

You can revoke their POA and get a new vet rep to help you. Printout the whole thread here, for them, so they can determine best  what to do  ,next.

 

 

 

Edited February 25, 2016 by Berta

[Vinsky54]

Thank you again. I will do the research and modify or expand on my NOD as appropriate. I guess the main thing I am taking away from this is that my ignorance is cured. One would think, based upon the law and regulation, that the VA would be doing everything in their power to make sure the vet is getting the benefits he/she earned. It has become obvious that the opposite is true.

As I mentioned earlier, my congressman is very involved in vets issues and his staff has been very interested in the roadblocks, delays and incompetence of my claim experience. I will forward this thread to him. (His name is Sam Johnson. This is from his bio: "Sam, a decorated war hero and native Texan, ranks among the few Members of Congress to fight in combat.  During his 29-year career in the U.S. Air Force, Representative Johnson flew combat missions in both the Korean and Vietnam Wars.  He endured nearly seven years as a Prisoner of War in Hanoi, including 42 months in solitary confinement.")  

Thank you and the founders of this website for your awesome work. It is greatly appreciated.

[Vinsky54]

Just one more quick note. I do have a POA, who shall go unnamed, that has done zip, zero, nada except fill out the original NOD form (incorrectly). Looks like I got a POS instead.

[Berta]

Even if so, it is not too late, but you don't have much time left,  to alter/amend the NOD to the actual in-service disability, and I hope that works.

Pardon the expression but every POA I had years ago almost put me into the crapper. I filed an extensive OGC complaint on all of them.

They no longer handle claims.

Yet there are some reps out there who are superb!

 

[Vinsky54]

Applying Berta's wisdom and suggestions, I went back and studied my old records. I have only had them a few months as a result of a request for them that the VA converted to a FOIA request. Regardless, I got them and struck gold. Buried in handwritten "code" in a USAF clinic record is a description of me complaining of the symptoms of dumping syndrome. The VA's argument that there is no military record of "any complaint, treatment or diagnosis" of dumping syndrome has evaporated. Thank God for you Berta - and for the inspiration of Navy4life on another thread.

Here's my first draft of the supplement I intend to file. Any critique will be greatly appreciated.

Vinsky

VA supp 4.pdf

[Berta]

The April 2015 was a denial of a re-open request, saying you did not send them New and Material Evidence.

I suggest that you send them via IRIS or VA fax and snail mail with Proof of mailing( so you know they get it),the following statement:

Put Attention to: and then put the initials in the alpha numeric code at the upper right hand Re: part of the first page, asking them to CUE the decision due to a violation of 38 CFR 4.6 because the enclosed ( or attached) copy of the the SMR you found ,indicating symptoms of dumping syndrome, reveals that VA did not do a conscientious and thorough search of your SMRs.

Type out 38 CFR 4.6 that is stated here:

http://community.hadit.com/topic/60717-the-power-of-38-cfr-46/

(you might be able to expand to other parts of 38 CFR 4.1 et all...I don't have time to go over the while reg...it is googable.)

Tell them of the ulcer surgery inservice that you had and that the dumping syndrome is a direct consequence of that, as there is no other known etiology, in your case for it, and this syndrome appeared as noted in the record enclosed as diarrhea.

Tell them they failed to properly consider the actual documented pyloroplasty due to the ulcer surgery, again, a failure to properly consider all of the evidence in your SMRs, which was detrimental to you as the claimant.

You stated above that  "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."

THAT decision should have been CUED. Maybe you can still CUE it BUT, you need to get the Ulcer SCed and then the dumping syndrome SC as secondary to the actual inservice nexus in the first instance - the ulcer surgery!

Tell them that due to their clear and unmistakable error of failing to consider all relevant information in your SMRs, and recognizing your inservice nexus properly you did not receive a C & P exam, and you request that you be scheduled for one immediately.

I will try to find your RO's fax number but I do suggest using both IRIS and the RO  fax,unless you can upload this CUE at ebenefits....I forget how ebenefits works.

If VA eventually  awards you for a ratable SC condition, then the potential of CUE in the older decision will have merit, and potentially more retro....depending on that actual decision and other factors......but you need to succeed in the present claim first.

 

 

 

 

 

 

 

Edited February 27, 2016 by Berta