CUE for Peripheral Neuropathy

[JustGettingStarted]

If I claimed "Neck Problems" when I retired in 2009, and I was diagnosed with the symptoms of peripheral neuropathy during my C&P exam, should I have been awarded peripheral neuropathy in addition to the cervical spondylosis I was rated for?   

Below is the CUE I just submitted along with all the medical records.  I have to say, my new VSO, the local county guy, was a big help.  He said I might have a problem since I originally claimed "neck" and not "radiculopathy", so I attacked that issue head on in my claim.

The claim is now in eBenefits being reviewed.  Hopefully it won't be combined with my other claims, which could take a while although the VA has all the evidence and I have completed all my C&P exams. 

MOTION TO REVISE A PREVIOUS VETERAN’S AFFAIRS REGIONAL OFFICE DECISION ON THE BASIS OF CLEAR AND UNMISTAKABLE ERROR

 I am requesting a motion to revise the date of a rating decision made by the St. Petersburg, FL VA Reginal Office on February 10, 2017 concerning bilateral peripheral neuropathy of the upper extremities.  I am requesting a new date of 1 May 2009.  The decision in question is for myself, JustGettingStarted, VA File Number #########.

 SPECIFIC ISSUE CHALLENGED:  Upon my retirement on 1 May 2009, I was service connected for Cervical spondylosis at 10%; however, I should have also been serviced connected for bilateral upper extremity radiculopathy (peripheral neuropathy) related to the cervical spondylosis. 

 This motion alleges specific errors of fact or law and why the result would have been different were it not for those errors: 

 ERROR:  The VA recognized symptoms of bilateral radiculopathy in my upper extremities during a peripheral nerve C&P exam conducted on 20 July 2009 but failed to provide service connection or a rating.  In this case, the VA failed to give a sympathetic reading to the filing by determining all potential claims raised by the evidence, applying all relevant current laws and regulations.  Moddy v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).  In addition, the VA failed to apply the applicable, existing regulations or statue at that time.  Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

 FACTS: 

1.  In 2008, when preparing for my retirement physical, I claimed "neck" problems.  My miliary doctor clarified "cervical disc herniations with radicular symptoms" on the same document (Attachment 1). 

 2.  In my 2009 C&P exam it is stated “A Bone, Hand, Joint, Peripheral Nerves, and Spine Worksheet should be completed for this patient” (Attachment 2).  Both the Peripheral Nerve and Spine worksheets say to see the Bone Worksheet (Attachment 3).  On the Bone worksheet, the examiner states “bilateral hand numbness”, “numbness in the dorsum of her forearms”, and “pain radiates into the bilateral arms”.  All are symptoms of bilateral upper extremity radiculopathy.  It is also noted that I was taking Motrin and Neurontin for the nerve pain (Attachment 2).

 3.  On 5 Dec 2016, I had a C&P exam for peripheral neuropathy that states “Chronic neck pain radiating to the left arm and right hand numbness since 2000”.  (Attachment 4).  After this exam, I was service connected for left and right upper extremity radiculopathy and rated 20% bilaterally. 

4.  Peripheral neuropathy is supported by a long medical history documented in military medical records to include MRIs (Attachment 5).  These records were available to the VA during my rating decision in 2009.

In summary, the path to this error is very clear.  My medical records from 2000 to present clearly show signs of bilateral upper extremity radiculopathy supported by x-rays and MRIs.  I claimed this as a neck problem when I retired in 2009 and it was clarified to include “radiculopathy” by my military doctor.  In 2009, the VA ordered exams for Peripheral Nerves, Spine, Hands, and Bones.  When rated in 2009, somehow the radiculopathy was overlooked when it became part of my Bone exam and not reported separately on the Peripheral Nerve exam.  The symptoms continued after this exam and I had the radiculopathy properly rated in 2016 by a VA examiner who states I had the symptoms since 2000 based on the medical records provided to him.  The VA clearly should have provided service connection and a minimum 20% rating for both right and left upper extremities based on all the medical information that was on hand during the 2009 C&P exam.

This request for a new rating date of 1 May 2009 for bilateral upper extremity radiculopathy (peripheral neuropathy) at 20% and meets all qualifications for Clear and Unmistakable Error: 

- The VA had all evidence in hand, including military medical records and a C&P exam, when they did not provide for service connection and a rating for peripheral neuropathy in 2009. 

- The statutory or regulatory provisions extant at the time were incorrectly applied when the VA failed to determine all potential claims raised by the evidence at hand.

- The error was the sort which, had it not been made, would have manifestly changed the outcome at the time it was made.

- The determination is based on the record and the law that existed at the time of the prior adjudication in question.

 I request your favorable consideration in this matter.

 JUST GETTING STARTED

17 July 2017

Five attachments

1.  Military separation physical

2.  2009 VA C&P exam for Peripheral Nerve and Spine

3.  2009 VA C&P Bone exam

4.  Excerpt from 2016 VA C&P exam

5.  Military medical records, peripheral neuropathy

 

 

 

Edited July 22, 2017 by JustGettingStarted

[JustGettingStarted]

Berta,

Maybe you could post Look v. Dewinski somewhere where others can find it.  I even searched the US Court of Veterans Appeals and could not find the text.

JustGettingStarted

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Look v. Derwinski, No. 90-476

UNITED STATES COURT OF VETERANS APPEALSNo. 90-476ROBERT W. LOOK, APPELLANT, V. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS , APPELLEE.

On Appeal from the Board of Veterans’ Appeals and On Appellee’s Motion for Summary Affirmance and to Stay Further Proceedings(Submitted March 22, 1991 Decided February 6, 1992)Arnold Van Etten was on the brief for appellant.Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General Counsel, PamelaL. Wood, Deputy Assistant General Counsel, and Carolyn F. Washington were on the pleadingsfor appellee.Before NEBEKER, Chief Judge, and MANKIN and IVERS, Associate Judges.MANKIN, Associate Judge, filed the opinion of the Court, in which IVERS, AssociateJudge, joined. NEBEKER, Chief Judge, concurring in part, filed a separate opinion.MANKIN, Associate Judge:

 

Appellant, Robert W. Look, has filed several claims with the Veterans’ Administration (now the Department of Veterans Affairs) (VA) since 1962 for disability benefits for the residuals of surgery for a herniated intervertebral disc. Appellant contends that he sustained neurological damage as a result of surgery conducted at the VA Medical Center in Madison, Wisconsin on April 27, 1960. R. at 34. Specifically, appellant contends that he suffers from left foot weakness and left foot drop (an extended position of the foot caused by paralysis of the flexor muscles of the leg). The veteran appeals from the February 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision, which denied entitlement toservice-connected disability pursuant to 38 U.S.C. § 1151 (formerly § 351) and 38 C.F.R. § 3.358(c)(3). Because the BVA decision is based on an invalidated regulation and contains reversible error of both fact and law, we reverse the BVA decision and remand the case to the BVA with specific instructions to proceed in a manner consistent with this opinion.

I. Factual Background

2 

Robert W. Look served in the Army for eight months during World War II. R. at 13. His induction physical examination revealed no defects and indicated that he was physically and mentally qualified for general military service. R. at 8-11. A physical examination of June 18, 1943, conducted before appellant was honorably discharged revealed that his “Right knee and ankle jerks brisker than on left. No Clonus. Gait shows a slightly widened base and is a little asynergic. Neurological examination otherwise negative.” R. at 15. No foot drop was noted during or immediately after service.

On March 7, 1960, appellant was admitted to the hospital for “pain and numbness in the left leg.” Upon examination and X rays, it was determined that appellant had “an extrusion of lumbosacral disc and that a laminectomy was indicated to correct this.” R. at 32. On April 26, 1960, the VA Regional Office (VARO) rating board denied service connection for psychoneurosis mixed type and rupture of nucleus pulposis with nerve root compression L-4, L-5. R. at 44. On April 27, 1960, he was “taken to surgery and a  laminectomy was performed with removal of a small piece of disc, L-5 S-1 on the left.” R. at 34, 36. On the very same day the surgery was performed the “Record of all Pertinent Complications” noted that “[t]here is some numbness in the left foot with accompanying foot-drop. Very weak in the legs. . . . There appears to be Nerve Cell damage. Has extreme pain in back and legs.” R. at 37, 39. Dr. J.K.Curtis examined appellant on June 16, 1960, and noted “Ankle jerks zero. Walks with left foot drop. . . . Cannot walk on left heel. . . . The nerve root could be removed only with considerable effort. It is my opinion in doing so, there was nerve cell damage done in the central nervous system.” R. at 31. Dr. J.T. Mendenhall approved Dr. Curtis’ diagnosis of “Damage to central nervous system during surgery.” R. at 31. On June 23, 1960, Dr. H.E. Groth noted that even after “the course of physiotherapy the patients [sic] foot-drop . . . was unchanged. Patient has extreme pain at times.” R. at 41. On June 27, 1960, Dr. Groth also noted that appellant “could not get on the heel of his left foot due to inability to dorsiflex the foot to that extent.” R. at 34. After applying for compensation and pension benefits, on October 24, 1962, appellant was re-examined by VA physicians. R. at 56-64. One physician’s diagnosis was “Herniated intervertebral disc L5 S1, operated residuals of- mild foot drop and weakness in foot.” R. at 59. A November 27, 1962, rating decision granted appellant a 70% combined rating for non-serviceconnected disabilities: 50% anxiety reaction, competent and 40% for herniated intervertebraldisc L-5 S-1, operated, residuals of with mild foot drop and weakness, left foot. R. at 65. Appellant was examined on March 26, 1963, and December 8, 1965, with the same diagnosis of “Herniated intervertebral disc, L-5 S-1 residual weakness left foot and ankle.” R. at 70, 75. On December 20, 1965, the VARO maintained the previous rating decision, but denied appellant’s claim of service connection for a nervous condition and arthritis. R. at 81. The BVA

3in a May 9, 1967, decision affirmed the denial of entitlement to service connection for arthritis and a nervous disability as no new factual basis was established by appellant. R. at 87. On July 6, 1973, the VARO affirmed the previous rating decision and denied service connection for hypertrophic arthritis and polyneuritis and found “no evidence of carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of indicated fault in the surgery for veteran’s back exists on the part of the Veterans [sic] Administration.” R. at 88. On December 12, 1973, the BVA denied entitlement to service connection for anxiety reaction and to disability compensation for postoperative residuals of a herniated intervertebral disc. R. at 94. On October 6, 1975, the BVA found no obvious error in the 1967 BVA decision denying service connection for arthritis, therefore, the veteran’s claim was denied. R. at 99.On August 15, 1977, the VARO refused to reopen the veteran’s claim, finding that no new factual basis had been established. R. at 107. On August 30, 1978, the VARO affirmed the prior rating decisions maintaining the combined 70% non-service-connected disability rating established since 1962. R. at 108. On June 1, 1979, the BVA denied benefits for service connection for arthritis of the spine and entitlement to disability benefits for postoperative residuals of herniated disc pursuant to provisions of 38 U.S.C. § 1151 (formerly § 351). R. at 116.

On November 29, 1988, the VARO increased his non-service-connected pension combined rating to 100% as a result of carcinoma of the bladder found earlier that year. The board also awarded appellant a special monthly compensation “on account of carcinoma of the bladder and additional disabilities of anxiety reaction and herniated intervertebral disc, independently ratable at 60% or more from 1-15-88 [the date of the bladder surgery].” R. at 176. No service connection was found for the spinal injury due to the operation performed in 1960. R. at 177.

In 1989, appellant submitted letters from Dr. Douglas A. Schmid, Dr. Eugene F. Herzberger, and Dr. S. Chi stating that his current condition, including the left foot drop, was caused by complications of the laminectomy performed in 1960 at the VA Medical Center in Madison, Wisconsin. R. at 179, 180, 181. While the VARO reopened appellant’s claim on February 21, 1989, it denied service connection under 38 U.S.C. § 1151 on February 24, 1989. R. at 182. The VARO confirmed its rating decision on June 5, 1989. R. at 184. A timely appeal to the BVA followed. On February 14, 1990, the BVA denied entitlement to disability benefits for residuals of herniated disc pursuant to 38 U.S.C. § 1151. Robert W. Look, BVA No. 90-04499, at 7 (Feb. 14, 1990). From that BVA decision, the veteran presents his appeal to thisCourt.

II. Analysis4A. The issue in this case is whether the BVA erred in determining that appellant was not entitled to disability benefits for residuals of a herniated disc pursuant to 38 U.S.C. § 1151 (formerly § 351). Section 1151 of title 38 states in pertinent part: Where any veteran shall have suffered an injury or an aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . .not the result of the veteran’s own willful misconduct, and suchinjury or aggravation results in additional disability to or the death of such veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.

This statute controls the disposition of this case. This Court has recently held that, [t]he statute imposes only two limitations on the granting of service-connected benefits; first, as long as the injury or aggravation occurs `as a result of’ exposure in one of four circumstances and, second, is not a `result of such veteran’s willful misconduct,’ benefits will be made available. . . . This language reveals that Congress considered the issue of fault while drafting the statute and suggests that, although fault of the veteran is relevant to a determination of eligibility for compensation, the fault of the VA personnel is not.

Gardner v. Derwinski, 1 Vet. App. 584, 587 (1991). The statute does not require fault, and therefore, 38 C.F.R. § 3.358(c)(3) was held “unlawful as exceeding the authority of the Secretary and in violation of the statutory rights granted to veterans by Congress under section 1151.” Id. at 6.

The BVA decision relies on its finding that the “evidence does not otherwise show that there was accident, negligence, or other fault on the part of the VA in connection with the surgery in 1960.” Look, BVA No. 90-04499, at 6. Clearly, this determination is based upon the invalidated language of 38 C.F.R. § 3.358(c)(3). Because the BVA decision was premised on a regulation that has been held invalid, normally its decision would be vacated and the case remanded for readjudication under the proper statutory standard. Here, however, readjudication is not necessary as discussed below in section C of the Court’s opinion.

B.When a veteran attempts to reopen a previously denied claim based upon new evidence, “the BVA must perform a two-step analysis.” Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the BVA must determine whether the evidence is `new and material’. 38 U.S.C. [§ 5108 (formerly § 3008)]. Second, if the BVA determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the 5 merits of the veteran’s claim in light of all the evidence, both newand old.

Id. The claimant bears the initial burden of presenting “new and material” evidence under 38 U.S.C. § 5108. The first prong of the Manio analysis appears to have been satisfied, since the BVA proceeded to review the merits of appellant’s “reopened claim”. See Look, BVA 90-04499, at 5. In such a case, as presented here, where “the BVA determines that evidence is `new and material’, reopens and reconsiders the claim, and once again denies the claim, that decision is subject to review on appeal by this Court based upon the entire record because the decision of the BVA was required to be based upon all evidence and material of record.” Manio, 1 Vet.App. at 146. The 1990 BVA decision focused on “whether the evidence received is new and material and of such weight as to establish a new factual basis in support of an allowance of benefits. . . .” Look, BVA No. 90-04499, at 5 (emphasis added). While the VARO found the recent evidence new and material when it reopened appellant’s claim, the BVA concluded “that the additional evidence received subsequent to the Board’s prior decisions does not establish entitlement to the benefits claimed.” Id. at 6 (emphasis added). Just as in the Manio case, the February 14, 1990, BVA decision “reveals that the BVA erroneously failed to consider the evidence submitted by appellant in the course of prior appeals. . . . the BVA was obligated to consider all relevantevidence offered by appellant. Because of this error the BVA’s decision must be set aside.” Manio, 1 Vet.App. at 146-47. The BVA decision was not based on the complete record as required by 38 U.S.C. §§ 5108 and 7104(b) (formerly §§ 3008 and 4004). This case, however, unlike Manio, warrants a reversal and remand for further proceedings for the reasons discussed below.

C.1. Clearly Erroneous Fact FindingWhen 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.

6A 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.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 542 (1948); Brannon v. Derwinski, 1 Vet.App. 314, 317 (1990); Spencer v. Derwinski, 1 Vet.App. 125, 126-27 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). If the [factfinder]’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert, 1 Vet.App at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12 (1985)). The Court must now determine, under the standard announced by theSupreme Court and in Gilbert, whether the BVA’s factual findings are clearly erroneous. In his reopened claim, the veteran presented medical opinions from three different physicians, who all agreed that the veteran’s left foot drop is directly related to the damaged nerve root caused by the laminectomy and disc removal performed in 1960. With a reference to “unexpected complications”, Dr. Schmid stated after reviewing all of the medical records, “I think the evidence does point to his disability being related to his surgery in 1960. This is corroborated with a recent neurological evaluation, including electromyography and nerve conduction velocities.” R. at 179. Dr. Chi concluded that the nerve root damage “was [an] unexpected complication from [the] previous surgery, but the current symptoms are still from the previous laminectomy and dysc [sic] removal.” R. at 181 (emphasis added). The most compelling evidence is from Dr. Eugene E. Herzberger, who after reviewing all of the medical records came to the conclusion that: All these records document the fact that you have developed a left foot drop following your lumbar disc surgery of 1960. This foot drop could be considered as an untoward event following lumbar disc surgery because it usually does not occur and it is only in very rare instances where it happens due to specific difficulties which the surgeon may encounter during the surgery.R. at 180 (emphasis added). Despite the overwhelming evidence submitted and no evidence to thecontrary, the BVA concluded that “the additional evidence received subsequent to the Board’s priordecisions does not establish entitlement to the benefits claimed.” Look, BVA 90-04499, at 6.Before appellant submitted the new and material evidence, the Board and the rating boardsbefore it continually ignored and disregarded the following reports to deny service-connecteddisability under 38 U.S.C. §1151: (1) the April 27, 1960, medical report noting “numbness in the leftfoot with accompanying foot-drop. . . . There appears to be Nerve Cell Damage.” R. at 37, 39; (2)the June 16, 1960, examination by two physicians noting, “[w]alks with left foot drop. . . . The nerve

7root could be removed only with considerable effort. It is my opinion in doing so, there was nervecell damage done in the central nervous system. . . . Damage to central nervous system during surgery.” R. at 31; (3) the October 24, 1962, examination concluding “Herniated intervertebral disc L5 S1, operated residuals of- mild foot drop and weakness in foot.” R. at 59; (4) the March 26, 1963, and December 8, 1965, examinations confirming residuals of the surgery as “weakness left foot and ankle.” R. at 70, 75; (5) a statement by a doctor who examined him in February 1960 stating that “[h]e definitely didn’t have a limp or foot drop . . . at this time. He did however have these ailments ever since surgery. . . .” R. at 82. The Board, and the rating boards before it, have effectively denied the very existence of these reports by concluding, as the 1979 BVA decision did, that “entitlement to disability benefits for post operative residuals of herniated disc pursuant to provisions of 38 United States Code [1151] is not established.” R. at 116. After reviewing the newly submitted evidence together with the previous medical records as required by Manio, the BVA’s factual determination is definitely clearly erroneous.The Court is left with the “definite and firm conviction that a mistake has been committed.” United States Gypsum Co., 333 U.S. at 395. Where, as here, “a plausible basis is lacking, this Court will set aside factual findings as clearly erroneous.” Brannon, 1 Vet.App. at 317. The only conclusion that can be drawn from the record is that appellant’s left foot drop was the direct result of the laminectomy performed in VA Medical Center in Madison, Wisconsin on April 27, 1960.

2. Clear and Unmistakable ErrorIn this appeal, appellant argues that the rating board and the BVA failed to apply the correct statutory and regulatory provisions to the facts of his case and requests that the Court overturn the 1990 BVA decision under 38 U.S.C. § 7261(a)(3)(A) as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Br. of Appellant at 4-5. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.” Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). See Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991) (discussing 38 C.F.R. § 3.105 (1990); accord 38 C.F.R. § 2.1009(a)(1947)). Here, in his reopened claim, the veteran has raised a “question that the rating board and the BVA had before them the relevant and correct facts.” Cf. Thompson, 1 Vet.App. at 253. Claims under 38 U.S.C. § 1151 “shall be awarded in the same manner as if such disability, aggravation, or death were service-connected.” It has consistently been the Secretary’s position that the left foot drop existed prior to the 1960 surgery. The VA relies on a medical report that states that the veteran had a left slapping gait with weak dorsiflexion of the left foot, yet there is no medical diagnosis of left foot drop at any time prior to April 27, 1960, anywhere in the record. In reviewing he entire record before us, the Secretary has not presented an iota of evidence that appellant’s left

8foot drop existed prior to the surgery. Yet even if the left foot drop was a preexisting condition, theVA at no time ever considered that the condition was unquestionably aggravated by the 1960 surgery, and thus would be compensable under 38 U.S.C. § 1151. For this reason, the BVA in its February 14, 1990, decision clearly erred in rejecting appellant’s argument that clear and unmistakable error had been committed. Neither the 1990 BVA decision, nor any of the other BVA decisions, nor any of the rating decisions as far back as 1973 ever applied section 1151 properly. Even when appellant first applied for residuals of the surgery, the VA failed to consider section 1151 at all, but awarded appellantbenefits for a non-service-connected pension in its November 27, 1962, rating decision. In 1962 andthereafter, the VA has failed to apply the correct statutory and regulatory provisions to the correctand relevant facts. See Thompson, 1 Vet.App. at 253. The substantive rights of the veteran have been prejudiced by the Government’s failure to apply 38 U.S.C. § 1151 properly and thus, this misapplication of the law constitutes clear and unmistakable error committed by the VA in the 1962 rating decision. See Akins v. Derwinski, 1 Vet.App. 228, 232 (1991); Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990), appeal dismissed for failure to prosecute, No. 91-7020 (Fed. Cir. Feb. 22, 1991). The VARO and the BVA further erred when they incorrectly applied 38 C.F.R. § 3.358(c)(3), hich allows compensation to be paid under 38 U.S.C. § 1151 when the injury or aggravation occurs as a result of hospitalization: However, compensation is payable in the event of the occurrence of an “accident” (an unforseen, untoward event), causing additional disability or death proximately resulting from Department of VeteransAffairs hospitalization or medical or surgical care. 38 C.F.R. § 3.358(c)(3) (emphasis added), invalidated by Gardner v. Derwinski, 1 Vet.App. 584 (1991). Regardless of the fact that the evidence before the VARO in 1962, as discussed above, indicated nerve cell damage immediately after appellant’s operation, and evidence before the BVA in 1990 contained statements by three doctors to the effect that appellant’s left foot drop was “untoward” and “unexpected,” neither tribunal correctly applied section 3.358(c)(3) to this evidence. While 38 C.F.R. § 3.358(c)(3) has been rendered invalid, the regulation, in a similarly worded provision, has been applicable since the time of the 1962 rating decision. The Court hasconsistently held “that the BVA is not free to ignore its own regulations.” Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Even under a correct application of the law as it previously existed, requiring fault, clear and unmistakable error occurred when the VARO and the BVA ignored the portion of the regulation which would have allowed compensation in the event of an “accident.” Thompson, 1 Vet.App. at 253. See Oppenheimer, 1 Vet.App. at 372.

9Having concluded that administrative error was committed in 1962 and thereafter, the 1990 BVA decision must be reversed under 38 U.S.C. § 7261(a)(3)(A) (formerly § 4061) and remanded with instructions. On remand, the Secretary is instructed to amend the 1962 rating decision to award benefits as if service connected under 38 U.S.C. § 1151 and determine the appropriate disability rating for appellant. Where the evidence establishes clear and unmistakable error, as the facts reveal here, a reversal of a prior decision “has the same effect as if the corrected decision had been made on the date of the reversed decision.” 38 C.F.R. § 3.105(a). In accordance with the regulation, the corrected rating decision must be given the same effect as if rendered on November 27, 1962. See Akins, 1 Vet.App. at 261.

III. ConclusionThe Secretary’s motion for summary affirmance is DENIED, and the decision is REVERSED and REMANDED for disposition in accordance with this opinion. It is so ordered.NEBEKER, Chief Judge, concurring in part: I concur in the reversal on the basis of Gardnerv. Derwinski, 1 Vet. App. 584 (1991), and would remand consistent with that decision.

[Berta]

I will put in into the Section 1151 forum.

This decision would not affect many-due to the 1151 regulations after Gardner- but still this was a very important 1151 issue.

 

[FormerMember]

CUE claims are never "combined" with other claims for new ailments or increases. VA has four "lanes" for claims now- new claims/increases, Appeals and CUE (which includes §1151 claims) and lastly, Special Operations like homeless/ medical exigency. I didn't include VR&E or dependency issues in adjudications discussions. One facet VA will hammer home is that you had an opportunity to file a NOD and object to the decision made in 2009. Ignore that argument. Remember, you are not a doctor. There is no MD after your name. Even though Clemons v. Shinseki was not case law at the time, you can cite to Espiritu v. Derwinski for the proposition that you are not one (an MD) and are not expected to be able to phrase your claim for benefits precisely. It's enough to file the claim imprecisely and let VA deduce what it is you are asking for. Once read, the medrecs will illuminate even the most dense rater or his supervisor.  By law, VA is required to examine your claim and "infer" or deduce what, exactly, you are attempting to say or file for. For instance, if you'd filed for a SFW that wrecked your eyeball, they are obligated to infer whether there are peripheral claims associated with it (residuals) such as retained metal fragments which can never be debrided and the possibility of a permanent disability. VA tends to look strictly at refractive error after it heals and ignores 38 CFR §4.1 through §4.10.  They studiously avoid any in-depth investigation even when they have  §4.84a DC 6009 (eye, injury of, unhealed) at their fingertips for application. And, much like Mr. Clemons in the above decision, they are more that willing to open a whole new claim for DC 6009 in 2017 because you mistakenly filed for SMC K for loss of, or loss of use of, one eye or DC 6029 Aphakia. 

Always remember who you are dealing with. Think GEICO. They would rather pay you for a little bondo work and an Earl Schieb touch up paint job rather than a whole new left front quarter panel. They purposefully try to minimize the scope of the injury and focus myopically on what you claimed-not what you actually suffer from. When you object, they proceed to argue something totally irrelevant. It's like herding cats. 

When doing CUE claims, I'm anal about focusing on case or controversy. I lay out §3.105 at the beginning and then proceed to point to the error over and over again. Redundancy is often required to keep them on subject. 

Edited July 28, 2017 by asknod

[FormerMember]

As a postscript. I've only won one CUE claim for myself- about $70 K based on equitable tolling of a claim. Berta has me whipped in that category. My favorite is §3.156(c) claims. It's like shooting fish in a barrel.

[JustGettingStarted]

1 hour ago, asknod said:

As a postscript. I've only won one CUE claim for myself- about $70 K based on equitable tolling of a claim. Berta has me whipped in that category. My favorite is §3.156(c) claims. It's like shooting fish in a barrel.

Asknod - Don't you talk about holding a little something back just in case you need to submit new evidence to keep your claim open?  I've heard that somewhere.

 

[JustGettingStarted]

Asknod, I am fully prepared for the VA to ask why I didn't file a NOD - my answers are pretty much what you just said.  I made the right claims, but the VA did not do their part when they rated me.   I have 3 cues going right now and every one of them seems perfectly clear - I filed for the conditions in 2009, was service connected for them, but not rated correctly.  All the information was in the VA's possession.  I submitted one CUE earlier and had to have it reopened because my RO can't read.  They completely overlooked the medications I was taking for my eczema-like condition, back in 2009. and again when I filed the CUE.  Medications are a huge part of eczema conditions - it is 60% if you take the meds full time, which I have been doing since 1998.  I claimed the condition and the medications in 2009, but did not know I was supposed to receive 60% because I did not know my condition was rated the same as eczema.  I couldn't find my condition in Title 38.  As for the peripheral neuropathy, I didn't even know what it was called back then, to me it was just part of my neck problem.  However, my military doctor said I had radiculopathy and my retirement exam and VA called for a PN exam.  The third CUE is for SCM-K.  I didn't know of any such entitlement when I was service connected at 0% for my endometrial ablation in 2009.  

I've heard that SMC will only be back-paid for one year.  I hope that isn't true.  If you claim loss of use of a creative organ, and VA is supposed to automatically pay SMC without the veteran requesting it, that is their mistake and not the veteran's mistake.  Why make the vet pay for their mistake?