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.
 

[FormerMember]

I did not research it. I merely suggested a line of attack. If it (dumping syndrome) is indeed in the medical lexicon and absent from your medical records defined as such, it will be a hurtle to overcome. In any case, a good nexus with supportive cites to peer-reviewed articles on the subject will carry the day. Best of luck to you in the fight.

[Vinsky54]

TR-6 is a fantastic little car. I once owned an MG-B. When I was a kid, dad drove an Austin Healy 3000 mk2. He used to drive in gymkhana events. Fun stuff.

[broncovet]

This has been discussed before.  That is, if you are in the appeal period, there is rarely a compelling reason to file "CUE" when the lower appealate review standard of "appeal" retains the coveted BOD.  Winning VA claims is difficult enough without "raising the standard of review" to the Cue level, absent a compelling reason.  

If you desire "practice" at winning difficult claims, you can advocate for other Veterans, and need not raise the bar to the CUE standard of review.  Once you understand that CUE is a "standard of review" it helps.  Both "CUE's" and NOD's suggest error on the part of VA.  A timely filed NOD retains benefit of the doubt, while CUE standard of review does not.  It simply does not make sense if you are in the 1 year appeal period to file a CUE when a less restricive standard of review, appeal, is easier to meet.  

[Vinsky54]

Well everyone. I want to thank each and every one of you for all your guidance, advice and encouragement. Today marks day 325 that my NOD has been "in process," and that is the VA's average processing time at Waco. So... it is now in God's hands. Everything I could add to the record has been added. The evidence is as plain as day, so I just await a decision.

Thanks again. David/Vinsky