"Manifestly changed the outcome"

[broncovet]

In another post, Berta posted:

"If a rating is denoted as NSC, there usually cannot be a CUE because there would be no manifested outcome."

Im not understanding this.  Yes, I get that its not Cue when VA forgets to dot an i, as that would not change the outcome.  But, if an issue was rated NSC, then, if it were SC instead, then there would be a different outcome.  

Post is here:

 

[Berta]

Right. maybe I am not stating this clearly enough:

"However if the NSC is successfully challenged to become SC ,by CUE -because VA did have evidence in their possession at time of that decision, that warranted the SC , then the rating could still be wrong and therefore a valid additional CUE could be filed."

An NSC could become SC via CUE, 3.156 claim, or a re open, and/or with an IMO.

Or "as if SC" under Section 1151.

As long as the established medical evidence shows it was/or is at a ratable level.

I added this part"then the rating could still be wrong and therefore a valid additional CUE could be filed" because it could take years to get the NSC turned into a SC and by then the disability would probably be a lot worse than at 10%.

10% or more is necessary for CUE.  The established medical evidence at time of the decision being CUed must show that the disability was at a ratable level------ 10% disabling or greater.The decision might not state it is, so then the established medical evidence in VA's possession at time of the decision, must be carefully gone over to reveal that the percentage should have been at a ratable level,due to medical evidence  that VA had.

 

 

[broncovet]

Its likely my fault, Berta, for not reading far enough.  I do that, sometimes, and "get stuck".  

So, let me rephrase what you posted.  

As we know, CUE must be outcome determinatave.  So, if an issue is NSC, then Service connection would not necessarily be outcome determinative, because a zero percent service connection would not change the result in that an NSC rating or 0 percent rating both result in zip for the VEt.  

But, it would be outcome determinative if the NSC issue were actually service connected at a rating greater than 0 percent, that is, if the evidence supports a rating higher than 0 percent.  

I had such an issue.  In 2005, the VARO issued a decision on hearing loss.  However, in 2012, I got a copy of the RBA which showed the RO ALSO "granted" NSC for arthritis of the knees at 0 percent.  In other words, they denied Service connection by rating it NSC, and did so without a rating including a reasons and bases as to why SC was denied.  Of course, the rating decision said NOTHING about arthritis..I did not know it was denied until I saw it was rated NSC in the rating sheet, not in the decision.   I allege this is a violation of 38 CFR 3.103 which basically says the VEt is entitled to a decision.   

I allege its CUE for VA to fail to give a reasons and bases as to why this was denied, but instead it was NSC, and, the VA included not one word about arthritis, but simply put on the rate sheet it was NSC.  

For me to show this is CUE, its pretty easy for me to establish that the VA gave no reasons and bases for denial as the decision never brought up the issue.  HOwever, I must also prove the outcome was manifestly changed that not only was it SC, but it was SC at least 10%, based on the symptoms at that time.   Im not sure if I can do that, because the rating percentage is a judgement call based on the symptoms and is not cue.  

[syne7]

Do you need a CUE to turn NSC to SC?

[Carl the Engineer]

syne7,

No, you do not need a CUE to turn a NSC to a SC disability.

All you need is new evidence.  However, you will not get the earlier date.

Case in point; I had an spot (would not heal) above my left eye that I was treated for in Iraq, that was not service conected, however, I (5 years later) had an unrelated MRI of my ear that showed a piece of metal above my left eye in the same place.  I submitted a re-open with new evidence and was SC for scars, however at zero.  And on their own, the VA also SC'd me for acne.  At zero.

I do believe if I wanted, I could have a doc dig it out and maybe be rated for scars, etc., but for now the doc says leave it in as it is now not doing anything harmful.

So, with new evidence, you can,

Hope this helps,

Hamslice

  

[Berta]

If a NSC becomes SC, but the same condition was rated as NSC in a past unappealed decision -or if appealed, was subsequently denied,

then there could be CUE potential in the older decision. Or 38 CFR 3.156 could be raised for more retro if the VA failed to obtain significant records for the older decision.

Here is a CUE beauty-apparently the VA denied ,in a 1973 decision, that the vet had SC schizophrenia, and listed it as NSC.

http://community.hadit.com/topic/59247-great-schizophrenia-cue/

I interpret it as a CUE but also as a 38 CFR 3.156 issue.

The veteran had in fact a Chronic presumptive psychosis.

My former vet rep didn’t even know what a chronic presumptive was.

This is a successful 38 CFR 3.156 situation.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files2/1213895.txt

The veteran had filed CUE, which was denied because the BVA saw how the 38 CFR 3.156 info awarded the claim.

In part:

"5.  In July 1995, the RO received information from the Department of Army and Joint Services Environmental Support Group verifying the Veteran's in-service stressor involving a fire aboard the USS Oriskany in October 1966.

6.  The evidence received by VA in July 1995 from the Department of Army and Joint Services Environmental Support Group was received within a year of the February 1995 rating decision and constituted new and material evidence that prevented the finality of that rating decision.

7.  In February 2003, service connection for PTSD was awarded, in part, based on service department records that had not been associated with the claims file at the time of the original denial of service connection in November 1972 due to the Veteran's failure to provide VA sufficient information to identify and obtain these records."
 

Interesting case… and a good reminder that when describing a stressor, giving as many details as possible, helps identify the stressor sooner than later.