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jlrith

CUE or not?

Question

Good day,

The VA service connected me for "Raynaud's Syndrome with Chilblain's Syndrome" in 2013.  

I am interested as to whether or not the following statement in the rating decision might constitute a CUE, based on various VA lawsuits (inferred claims)

"NOTE: It was unclear from your statement received April 1, 2012 if you were claiming paresthesias, hyperhidrosis, nail abnormalities, persistent athletes foot or you ears as part of Raynaud's / Chilblains.  Please clarify your statement and notify us if you are specifically claiming those issues separately from your already service connected disabilities." 

** I did appeal the Raynaud's rating, however the above items were never addressed nor were they evaluated.  

 

Specific court cases:

Shockley v. West, 11 Vet. App. 208, 214 (1998);  

Collier v. Derwinski, 2 Vet. App. 247, 251 (1992)

Buie v. Shinseki, 24 Vet. App. 242 (2011) 
•    “VA has a well-established duty to maximize a claimant's benefits.”
AB v. Brown, 6 Vet. App. 35 (1993)
•    “A veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise”
Bradley v. Peake, 22 Vet. App. 280 (2008)
•    “This duty requires use of the Diagnostic Code that is most favorable to the Veteran.  The applicable Diagnostic Code that results in the highest evaluation must be used, in other words.”
 

Here is the text of the evaluation:

"As the evaluation criteria for Chilblain's is so similar to the evaluation criteria for your Raynaud's syndrome, a separate evaluation cannot be established.  38 CFR 4.14 notes that the evaluation of the same manifestations under different diagnoses are to be avoided.  Therefor, your condition is evaluated with your Raynaud's syndrome."

" We have assigned a 40 percent evaluation for your Raynaud's syndrome based on:

- Raynaud's syndrome with characteristic attacks occuring at least daily.

- Chilblains syndrome with cold sensitivity, color changes, hyperhidrosis."

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I can not answer, with certainty, if you have a CUE or not without reviewing your entire Cfile.  

However, as far as VA "not adjuticating" your issue's, that is not CUE.  The CAVC calls that a "deemed denial".  

Even worse is the VA asked you (according to your post):

Quote

...Please clarify your statement and notify us...

This is in regard to disabilites claimed.  When the VA asks you for additional information (or clarification), the ball is now in YOUR court, and you have a responsibility to respond.  Your failure to respond could be considered a withdrawal of those mentioned claims.  

You see, a Veteran has a duty to do certain things:  You are responible for filling out the applicable forms, and you are further responsible, to assist (too) by doing things like signing consent forms for release of information of your records.  

If you dont cooperate, VA can/will deny you.  Or, they can simply withdraw your claim.  

That is, in my opinion when the VA asks you to clarify the disabilities claimed, and you dont respond, you are essentially withdrawing those issues.  This is not the VA's fault, honestly, its your fault for not carefully reading the decision and following up with the clarification of issues claimed.  

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