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Lemuel

Injuries secodary to service connected conditions

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I was diagnosed with and service connected for "traumatic brain disease" in 1985.  That nomenclature has changed under diagnostic code 8045 several times.  In 1990 I had an MVA (motor vehicle accident) and was hospitalized for two days at the West Los Angeles VA Medical and Research Center.  A neurologist diagnosed me as having an "altered state of consciousness" as a cause of the accident and reported the same to the California DMV.  I voluntarily turned in my drivers license not wanting to cause any more accidents.

My contention is that it is a clear and unmistakable error that when I claimed a secondary entitlement to service connection of spinal disc disease which resulted from a ruptured disc that occurred in the healing process of a very bad left side bruise and two fractured ribs.  The claim was denied because the adjudicator didn't find any history of a back problem in my military health record.

I believe this was because the examining physician left a note in my record referring to another patient who had a treatment record that began after I had been discharged from the Navy and before my September 1990 MVA.

What are my chances of getting a CUE decision on this?

 

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 A secondary claim can only be filed as secondary to an already established service connected disability.

  “The claim was denied because the adjudicator didn't find any history of a back problem in my military health record. “ 

If your SMRs revealed a documented back injury or problems, then you might want to use 38 CFR 3.156 ©

 https://www.law.cornell.edu/cfr/text/38/3.156

There is discussion here under a search for this type of claim, and we did a few radio shows on this regulation, if you google 38 CFR 3.156 hadit.com, the show archives should pop up...and past disussions.

 

 

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The back injury is from an accident caused by a partial seizure which is a residual of my service connected head injury.  The neurologist started me on Tegretol for seizures and had my DL suspended.  So it is by definition, a secondary condition to my TBI.

The problem was that an erroneous piece of paper was in my file on another veteran who had a back injury predating my accident.  Until my 1990 MVA caused by "an altered state of consciousness" I had no back problems.

Because of the document dated in 1987 that belonged to someone else the adjudicator didn't consider the claim of the back injury being secondary to the TBI in a 1992 decision.  It has been remanded by the BVA in its May11, 2017 decision of my case for further review.  

I'm in the process of looking up the proper 38 CFR reference to "secondary conditions."  For example service connected diabetes can be used to service connect amputations of extremities years later because it is the known outcome of this life time condition which is often initiated by a systemic infection affecting the pancreas.

Similarly, brain damage from traumatic brain injuries often leads to seizures.  Injuries resulting from a seizure are secondary to the TBI.

The quote you are responding to is out of context.  The whole quote should be:  "The claim was denied because the adjudicator didn't find any history of a back problem in my military health record.

I believe this was because the examining physician left a note in my record referring to another patient who had a treatment record that began after I had been discharged from the Navy and before my September 1990 MVA"

There is no new evidence to be had in this instance.  It is a CUE resulting from evidence that didn't belong in my file but belonged to someone else.  The adjudicator made no reference to the claim of the injury being secondary to a seizure from TBI degeneration.  He only looked for something that wasn't there and never claimed to be there.

Similarly, because I've written letters on behalf of veterans who had p. falciparum malaria, I've been denied service connection for malaria which I never claimed?  The adjudicators jump to conclusions too often without reading the full context or find something unrelated to dwell upon.  Probably too much pressure for productivity.

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I would advise you to seek legal counsel (Experinced VA Attorneys)

If this is a closed claim you can preceed with it as CUE but your going to have your hands full.

check out just some of these regulations  in rearguards of  CUE claims.

 

Because a claim for CUE is a review of an already "closed claim" also known as "final decision claim", special rules apply:

the "duty to assist" does not apply. This means that VA does not help a claimant with a CUE claim. 

a CUE claim must contain specific and detailed statements regarding the error:

how that error affected the decision, and

why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example:  a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

Undebatable:

Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994). 

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;"

(2)   VA's failure to comply with the duty to assist;

(3)   a "disagreement as to how the facts were weighed;" and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 ("The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court's review is generally limited to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo.  Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require "pleading with exactitude," it nevertheless must be plead with "some degree of specificity."  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude"); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) ("[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim."); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it"). 

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard).

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

 (b) Record to be reviewed—

 (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

 (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

 (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

 (d) Examples of situations that are not clear and unmistakable error—

 (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision.

 (2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

 (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

 (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

 

 

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 Can you give us a link to the  May 2017 Remand  or to the Docket #?

I assume you raised the issue on appeal of the note the physician put into the file regarding a different veteran.

BVA decisions are public and hold no names or identifying information.:

https://www.index.va.gov/search/va/bva.jsp

 

 

 

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Buck, some of that information is not accurate.

The source is missing as well.

I found the source at 

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

 

"A veteran can only claim CUE one time for each decision".   Wrong!

I filed 4 CUEs on one decision.

"The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998)."   Wrong too.

As a spouse of a deceased claimant ( who filed for accrued benefits in a timely fashion)

I have succeeded on MANY cues, as found within our CUE forum.

The quote would be correct however, if the surviving spouse had not filed for accrued benefits within one year after the veterans death, or if the surviving spouse did not fall under Nehmer, as to accrued.

In a different article  ,however ,this is made clear by Vetsfirst.org.

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1968

 

 

"A veteran's surviving spouse, children, and dependent parents may be entitled to accrued benefits which are "periodic monetary benefits ... to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death."  38 U.S.C. § 5121(a).  A claim for accrued benefits "must be filed within one year after the date of [the] veteran's death."  38 U.S.C. § 5121(c).  Also, a claim for accrued benefits derives from the deceased veteran's claim for benefits, and a surviving spouse, child, or dependent parent may not reopen or reargue a claim because "without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application."  Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998) (citing Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996)).

 

Any claim for accrued benefits is contingent upon "the veteran having a claim pending at time of death."  Jones, 136 F.3d at 1300.  A "survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of [clear and unmistakable error]" because 38 U.S.C. section 5109A, the statute pertaining to such requests for revision, does not "provide[ ] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

 

VA regulations explicitly define the phrase "[c]laim for VA benefits pending on the date of death" to include any request for revision of a prior decision on the basis of clear and unmistakable error that was pending at the time of the veteran's death.  38 C.F.R. § 3. 1000(d)(5); see Mallette v. Peake, 337 F. App'x 871, 872 (Fed. Cir. 2008) (per curiam order) (stating that the question of whether a veteran had a claim pending at the time of death is a factual determination); see also 38 U.S.C. § 7261(a)(4) (providing that the Court reviews the Board's findings of fact pursuant to the "clearly erroneous" standard).

A timely filed accrued claim gives a survivor the right to file CUE.

Because the CUE decision results from the established record in the veteran's lifetime.

Please give the sources for your replies.

I suggest that anyone here who feels a decision contains CUE, should post the decision and the rating sheet.

Just cover the C file, name address etc first prior to scanning it.

 

 

Edited by Berta

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