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Shyne-I

Exercise of Judgement used as denial for CUE

Question

Hello All!!

It's been a long time!! I have been peeping in on you all every once in all while...coping skills are still not my friends of mine...Lol!  I am so sorry to hear about Carlie and the others lost along the way.

I just got my decision back on that CUE I finally decided to file after all these years and it took them less than a month to deny it based on the fact basically that the alleged error involved an exercise of judgment which cannot be characterized as undebatably erroneous. How could it be an exercise of judgement if they have rules and regulations when it comes to ratings?? 38CFR. 4.7....I guess that makes it a judgement call but I thought it was always supposed to be in favor of the veteran!! But I know that the benefit of the doubt rule does not apply to a CUE....any thoughts on how to fight??

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Can you scan and attach the Reasons they gave in the denial here? (Cover C file # prior to scanning it)

If you have read any of my posts in the CUE forum ,you will see that I NEVER gave up on my CUES filed in 2003-2004. I asked for reconsideration and got meaningless rhetoric back from them, so I filed a timely NOD and waited for BVA transfer but  By time of the adjudication of my AO IHD death claim ( Nehmer),the CUEs had not been sent to BVA, so  I asked this RO doing Nehmer to properly adjudicate these CUE claims.In mere weeks, they awarded them. 2012.

The biggest problem with most CUE claims is a lack of specificity on the legal error.

Then again, in my case, their biggest error was a complete failure to read properly prepared CUEs that were prime facie  and involved much retro.

38 CFR 4.7 involves medical evidence.

We can help more when we read the denial.

 

 

 

 

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Just to add :

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp02/files04/0217964.txt

This is the first case I have found (since personally using this reg) whereby  the veteran claimed CUE under 38 CFR 4.6-(my favorite CUE reg) and then at some point he also claimed CUE under 4.7.

 

It is a long read and he got an SC award for something else  but was denied the CUE part of the claim.

4.7 is determined by how VA weighs medical evidence.

Since CUE depends on what medical evidence is established already, by time of the cued decision,

I feel the only way to combat a denial of the higher rating is with an IMO./IME from a real doctor….and if the NOD time period is over, the claim can be re opened with the IMO/IME.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files6/1131394.txt

In this above case however the veteran appealed all the way to the CAVC to get a joint remand, and then under 4.7, he got 50% for his PTSD.

BVA remanded the claim again to see if his medical evidence warranted 70%

This was not a CUE but a claim the veteran   took full advantage of the appeal rights he had, and aggressively fought, using in part, 38 CFR 4.7.

Another long but Very informative read.

BTW…he was a corpsman in Vietnam and even had a shrapnel wound….one more situation whereby a deserving veteran got screwed by the RO and he screwed them back.

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I'm not sure what your CUE was about, but did the original rater explain how they came to the decision to award the wrong rating?

I'm no CUE expert, but I am still learning. The whole "judgement error" part sounds like a cop out excuse for the VA to cheat Veterans every chance they get, especially regarding 4.7.

Under the presumption of regularity, the VA is assumed to have faithfully done it's job. But when someone screws up, they seem to immediately discount it as "judgement error". The way I see an "undebateable" error is when the law says they must do something, but they don't. But, I could be wrong.

 

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Okay, so for some reason I can't remember my own administrative password to my scanner and I can't scan and upload my decision rating letter(narrative) that I had to Go get from the TVC because they didn't mail it with with the reply letter!!

They totally screwed me and now I have to go through the Appeals process which could take years!

I'm just going to summarize:

Reasons for Decision

The decision to grant compensation from December 1, 1994 for sinusitis is not considered to have been clearly and unmistakably erroneous because the alleged error involved an exercise of judgment which cannot be characterized as undebatably erroneous.

(And this is where they get really thrown off because they use the current rating criteria for 6512(sinusitis) 

A noncompensable evaluation is granted unless there is evidence of one or two incapacitating episodes per year of sinusitis requiring prolonged(lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting.

(And then for some odd reason...they throw in this statement..)

Since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.

(So here is some of the evidence that was already in my records, plus what I believe the bullet they provided for their own gun was in their May 1995 Rating Decision)

March 1994 Evaluated for complaint of sinus congestion

April 1994 Presents with 1 day history of respiratory symptoms ear pain, sore throat, nose congested, otitis media

July 22 1994 Noted some maxillary sinus tenderness with complaints of left ear pain and drainage, and temporal headaches.

July 29 1994 Evaluated for complaint of headache frontal X 1week Tension headache SIQ 24hrs

August 1994 Noted complaints of headaches and slight ear pain. Examination noted right maxillary sinus tenderness

Separation Examination noted history of frequent tension headaches and frequent sinus infections

February 1995 C & P Exam Diagnoses : 1. Frontal Sinusitis, Mild  2. History of Urinary Tract Infection 3. Sinus Headache

May 1995 Rating Decision:

In determining evaluations for sinusitis, consideration is given to the frequency and severity of recurrences, and the severity of symptomatology such as headaches, sinus discharge, and crusting or scabbing of the mucous membranes.

The evidence shows mild or occasional symptoms with X-ray evidence of sinusitis which warrants a noncompensable evaluation.

2. Whether the claim for headaches is well grounded.

The condition of sinus headache is considered a symptom of sinusitis. Service medical records show treatment for a tension headache however, this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation.

(Sinusitis was granted at a noncompensable rate and headache claim was not well grounded)

Criteria for sinusitis before October 7, 1996

With X-ray manifestations only with mild or occasional symptoms warrant a noncompensable rating

For moderate symptomatology with discharge or crusting or scabbing, with infrequent headaches a 10% rating is warranted.

For severe impairment manifested by frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence a 30% rating is warranted.

50% evaluation is warranted for postoperative, following a radical operation with chronic osteomyelitis, repeated curettage, or severe symptoms after repeated operation.

(I feel like they should have given me the 10% rating because of the sinus headaches)

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Did you file a CUE on this regarding the speific exact criteria in place for the ratings, at time of the decision that is being CUEd?

When we can see the decision (and the evidence list) we can help more.

You can ask them to CUE themselves ASAP if the decision still is legally incorrect.

 

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