cue Draft CUE due to failure to consider VA medical records

[Vync]

Hello everyone,
I'm looking for feedback based on CUE when the VA fails to consider VA medical records. I have explored this previously, both publicly and privately with Hadit members, but am close to finalizing my draft.

I begin by stating the statutory and regulatory provisions extant at the time the decision was made, facts of my situation, and then close by showing how CUE is justified.

Feedback and guidance is greatly appreciated!

 

 

 

Draft

Clear and Unmistakable Error (CUE) occurred in my initial Rating Decision (February 2, 2000) for internal derangement of the right temporomandibular joint, which awarded a 10% rating based on a second C&P exam (December 17, 1997). The VA had constructive possession of, but "misplaced", and failed to consider an initial C&P exam (November 21, 1997) which warranted a higher 30% rating.

 

Statutory and regulatory provisions extant at the time the decision was made

§4.6 Evaluation of evidence

Quote

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

 

M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4)

Quote

III.iv.2.B.4.c.  Identifying a CUE

Exception:  A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim.  See VAOPGCPREC 12-1995.

 

VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records

Quote

The General Counsel began the analysis in this opinion by noting that a clear and unmistakable error must be based on the record and the law that existed at the time of the prior agency of original jurisdiction (AOJ) decision and must affect the outcome of the claim.  Specifically, a claim that an AOJ committed clear and unmistakable error in failing to consider pertinent evidence must be based upon evidence which was in the record before the AOJ at the time of the prior decision.  Russell v. Principi, 3 Vet. App. 310, 314 (1992); Caffrey v. Brown, 6 Vet. App. 383 (1994). 

In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule.  That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.  Accordingly,  as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision.  The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error. 

 

DeLuca v. Brown, 8 Vet. App. 202 (December 22, 1995) (discussing 38 C.F.R. §§ 4.40, 4.45)

Quote

The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.

 

Review of the facts

Initial C&P Exam (November 21, 1997) by Dr. X, DMD
The examiner noted:

1. Maximum ROM was 35 mm.
2. "Mandible locks midway and pt has to push downwards with his fingers to reach max".
3. "The pt is able to reduce the dislocation on his own without much effort or pain".
4. "All movements elicit pain".

Merriam-Webster's dictionary defines "midway" as "in the middle of the way or distance; halfway". Half of the maximum 35 mm ROM distance is 17.5 mm, per DeLuca v. Brown.

Per 38 C.F.R. 4.150, Diagnostic Code 9905 (1999), "Limited range of motion of temporomandibular articulation is assigned a 30 percent evaluation for inter-incisal range limited to 11 to 20 millimeters".

 

Second C&P Exam (December 17, 1997) by Dr. X, DMD
The examiner noted:

1. “Date of examination was approximately one month ago. However, that material has been misplaced and the service member returned on this date, 12/17/97, for re-exam.”
2. "The patient opens to 29 mm., experiences a loud click, and then can open to 42 mm".
3. "He responds to pain and discomfort on opening beyond 29 mm”.

 

Rating decision dated February 1, 2000
The VA Regional Office employee noted:

1. "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint". This quote is echoed in part from 38 C.F.R. §4.59 (1999) Painful motion. The decision resulted in a 10% rating, the minimum compensable rating for the joint."

2. References the December 17, 1997 exam.

 

CUE Justification
- The initial exam (November 21, 1997) exam warranted a 30% rating, per DeLuca v. Brown.
- The second exam (December 17, 1997) noted Dr. X conceding the material from the initial exam (November 21, 1997) was "misplaced".
- The Rating Decision (February 1, 2000) mentions the second exam (December 17, 1997), but never mentions the initial exam (November 21, 1997).
- The VA had constructive receipt of both exams authored by Dr. X, a VA employee.
- Both exams are present in my claim file.
- Both exams were a part of the record at the time the decision was made.
- Per §4.6, "Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
- Per M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4), "A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim."
- Per Bell v Derwinski, 2 Vet. App. 611 (1992), "...medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision."
- Therefore, given the above facts, had the VA considered the initial exam (November 21, 1997), it would have manifestly changed the outcome to a 30% rating vs 10% and the second exam (December 17, 1997), which is detrimental to the correct rating percentage, would not have been performed or considered.

 

End of draft

 

 

Thanks,
-Vync

Edited July 24, 2018 by Vync

[Okichewy1]

Couple questions with this.  

1.  Was the first exam listed on the initial decision letter you received in February 2000?

2.  How do you know that if the first exam was used, there wouldn't be a need for a second exam in December?  The rater could have requested clarification to the first exam (happens a lot) and could warrant a 2nd exam for that.  

- What this sounds like is you could possibly get a rating increase for 30% for the first month, then a reduction to 10% due to the new medical evidence that only warranted the 10% rating.  

 

Good luck!  CUE's are hard to prove, but can be done (have done 1 before and won).

[Vync]

@Okichewy1

1. The first exam was never listed or mentioned in the Rating Decision from 2000.

2. The C&P doc stated “Date of examination was approximately one month ago. However, that material has been misplaced and the service member returned on this date, 12/17/97, for re-exam.”

I had to come back for the second exam because someone misplaced the first one. On it's face, had the material had not been misplaced, I would not have had to return.

 

Even if they bump the initial rating up to 30%, it would still be good because I initially filed in 1995. That would be 5 years of retro because my initial combined rating was 40% (20/10/10/10) and it would become 54.65% (30/20/10/10), plus reimbursement of all the VA copays I had during that time.
  If I could challenge the second exam on DeLuca alone not being applied, that would be great. But I have been told that would not be allowed because it challenges how the evidence was weighed.

[john999]

Did you appeal the 2000 decision in which the VA did not grant your claim?  I had a claim that was 30 years old and the VA did not consider all the evidence in the file at the time.  The VA Court of Appeals denied my CUE saying the assumption was that all evidence in the file was considered even if it wasn't , so I could not prove it was or was not considered.  Very weird decision because it was obvious that the evidence was never considered but the VA said how sorry they were but rules were rules.

[Buck52]

Looks good to me Vync

you have this covered both ways with the 4.6. &the 
- Per M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4)

I'd like to see how they wisel l their way out of that.

Maybe Ms berta/or broncovet will see this in time  before you submit this,Ms berta  she is doing an upgrade to her computer system at home  and maybe down a while.

john999 

 The VA had constructive possession of, but "misplaced", and failed to consider an initial C&P exam (November 21, 1997) which warranted a higher 30% rating.

 it should not matter if he Appeal the decision.

 when they failed to consider an initial C&P EXAM  (Back in Nov 21 ,1997) This for a correct EED & correct rating according to the rating scheduled.for this condition  10% TO  30% IF he wins this, his retro adjustment should go back to that date to present at 20% and a 30% rating for this condition upon this grant

Sure looks ok to me Vync  ...Looks like you Nailed it Buddy.

Edited July 23, 2018 by Buck52

[Vync]

@john999

No, I did not appeal the Rating Decision from 2000. However, it was won after appealing to the BVA.

In your case, did the CAVC base their decision on the Presumption of Regularity? Personally, I don't believe the VA should be able to get away with being so vague in how they claimed to have reviewed the evidence.

In my case, the VA C&P doc actually noted that the initial exam material was "misplaced". I am hopeful that this can be sufficient to overcome Presumption of Regularity because they admitted an error occurred.

I hope that VAOPGCPREC 12-1995 and the related rulings may help.

 

 

[Vync]

@Buck52

Thanks Buck! I had a lot of good mentors over the years here on Hadit.

I'm not really in a rush to submit this. I have a second potential CUE that I am drafting up. That's why I am tossing this out for constructive feedback.