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.
 

[Vinsky54]

So now I have an email address and the phone numbers - thank you so very much. Do these people actually answer the phone and/or email?  I sure would like to get an answer on when my NOD may finally get a review. IRIS is useless, they completely ignore me when I ask that question - even just asking for an estimate.

Based upon your suggestion, I have demanded a C&P Exam. It occurred to me that without it, I have no claim. Because they refused all the evidence I submitted with my second claim (doctor's diagnosis, my sworn statement and my wife's sworn statement), there is nothing in the record to even substantiate that I have dumping syndrome (refused as not new or material). Though I did give them the option to just admit the CUE, include the documents in the case file and skip the exam.

I tried to schedule the C&P here at the Dallas VA Med Center, but they said it had to be ordered as part of the NOD; I cannot initiate it. File a form 21-4138, they said. I looked at the form and realized it was nothing more than shredder material. So I filed a demand styled as a legal pleading. Wanna see it? I will attach it.

 

C&P Exam Demand.pdf

[Berta]

"Based upon your suggestion, I have demanded a C&P Exam"

Where did I suggest here ,to demand one?

"I tried to schedule the C&P here at the Dallas VA Med Center, but they said it had to be ordered as part of the NOD"

That's right.

My RO often takes a year or more to react to a NOD.

I think you should ask IRIS for the status and whereabouts of your evidence.

 

 

[FormerMember]

To prevail on a true CUE (one in which the claim was not appealed), the requirements are very stiff. Here, declaring CUE while the claim is still viable merely asks the VA to correct an incorrect decision. If the claim is still viable and appealable, the tenets of Russell/Collins (1992) are not for application and you have a much lower threshold to meet to prove error. Do not confuse a claim that is final and reopened for CUE with one that is currently on appeal. While you may semantically choose to address the error as a clear and unmistakable error,  it is not cast in stone until the Fat lady sings at the Federal Circuit if you go that high.

[Vinsky54]

Thank you asknod. More great advice. Thank y'all so much for all the help.

For you and Berta both... I have enlisted the help of my best friend who is an attorney. He does insurance defense claims. (We met in the USAF 40 years ago, on the island of Crete.) With his help, I think we have nailed down the language and focused the issue on the fact that the SCR does in fact contain evidence that I was complaining of dumping syndrome while still on active duty (only 18 months post-surgery). This is in direct conflict with the Rating Decision of 2003, which says: "Service medical records do not show any complaints, treatment or diagnosis for dumping syndrome."  That was the reason for the denial. I only recently got these records pursuant to a FOIA request. I have submitted this information as part of the NOD (noting the CUE) and am hopeful that now they can reach the right decision rather easily (?).

[FormerMember]

Keep in mind that semantic terms evolve over time. You will never find a reference to PTSD before 1981 when it was first proposed to Congress. You will not find a reference to Hepatitis C until 1989 and so on. I suspect you will also not find much on the actual term "dumping syndrome" in the 70s medical literature. VA has a propensity to use words in such a way as to lead you away from the denial argument and shunt you down another path. They often use the word "history" disingenuously to mean that which you reported or something in the STRs that is not born out by evidence-i.e. it is history inasmuch as you reported it rather than it being evidence of record.  A famous one I had to fight was a "non-diagnosis" of skin cancer where the doctor simply wrote "rule out eczema". Lacking a true diagnosis, the Vet lost until a Doctor could opine and say the undiagnosed cancer in 1986 was indeed cancer and not eczema. 

One very useful tool I employ is the combat presumption in 38 USC 1154(b) where anything you say is the truth unless VA can rebut it as untruthful. VA absolutely chokes when you pull out that hole card. Rarely do they even look at your records to determine if you qualify for the presumption. 

[Vinsky54]

Fortunately, dumping syndrome has been around for a long, long time. Check this out:

Hertz made the association between postprandial symptoms and gastroenterostomy in 1913.[2] Hertz stated that the condition was due to "too rapid drainage of the stomach." Wyllys et al first used the term "dumping" in 1922 after observing radiographically the presence of rapid gastric emptying in patients with vasomotor and GI symptoms.[3]

Want to see the pertinent part of the latest filing? It's attached if you do.

Really appreciate you taking the time to advise rookies like me. It is most helpful

VA Extract.pdf