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

[broncovet]

I hope this works, but I do have reservations, and here is why.  

There are 2 ways in which VA can "list" evidence.  One is in the evidence section in the decision, the other is in the narrative of the VA decision itself.  

Often the VA covers its bases by saying stuff like (evidence section):

"Medical records dated 1-2-14  throug 2-1-18 from VAMC (location)"

    Of course this does not mean they considered a particular exam even if its during that period.  

 

    Worse, the VA can say, "oh, yea, Dr. P's exam on 10-13-2015...we considered that exam but, since there was other conflicting evidence, we went with the other evidence instead."  

     Now, the VA is supposed to give a reasons and bases as to why exam 1, was considered over exam 2, but they dont always do so.  In other words, the VA can say something like, "The examiner  from exam one was more thorough than the examiner from exam 2, so we went with that."   

     Or, they can select exam one for other reasons, such as one was a board certified examiner, more experience, etc.  That is a judgement call.  

     Here is the problem with this.  Now, you can appeal that, and dispute that the exam was more thorough, such as you had examiner number 1 for 10 years, but examiner 2, had only seen you 15 minutes, so this was more probative.  BUT, its a judgement call made by the rating specialist.  

     Now, here is the bad part:  VA's failure to give a "reasons and bases" as to why exam 1 was more probative than exam 2 is "not" a CUE error, because failure to give a reasons and bases is probably not "outcome determinative".  

     In other words, VA can say, "oh yea we considered that exam, but it was less probative than other exams."   

     Now you can appeal such a ruling, and argue that the VA should have given you bod (benefit of the doubt) or even that they should have asked for another c and p exam to explain conflicting exams, BUT it isnt CUE, since its a judgement call by the rating specialist.  

     Whenever its a judgement call, it isnt cue, because that is not "undebatable".  Remember, VA's failure to give due processs (Duty to assist) isnt cue.  So their failure to give a reasons and bases for decision is an appealable issue, but its not cue.  

      Many attorney's appeal on "reasons and bases"..and they often get a remand.  In other words they argue that VA did not give a reasons and bases as to why they rated one exam as more probative than another.  This is an appealable issue.  But its not cue, because VA's failure on dta isnt cue, in part, because the VA can say, "oh it wouldnt have mattered, and it wouldnt have changed the outcome".  

     The burden is on the VEteran to prove this (cue error) was OUTCOME DETERMINATIVE.  The VA can easily say that, because they forgot to give a reasons and bases as to why they selected exam 1 over exam 2, but that would not change the outcome.  The courts call that "harmless error".  "Oh gee, we forgot to give the reasons, but that changes nothing".  

      This highlights the difference in a "regular appeal" vs a Cue, because a regular appeal keeps the benefit of the doubt, where a cue does not.  In a regular appeal, you dont have to show this was "outcome determinative", but you do with cue.  Its not cue if VA forgets to dot an i, even tho thats an obvious error, it does not necessarily change the outcome.  

[Vync]

@broncovet

That's good info and what has me wondering too.

Both exams were performed by the same doctor, who was an oral surgeon. I don't think regular vs. specialist could be a factor here.

In this case, if successful, it would definitely change the outcome from 10% to 30%.

Below is the entire contents of the February 2000 Rating Decision's Evidence section. It is interesting because they went into a greater level of detail about date ranges and when/how evidence was received. But the last line catch-all is still there.

Quote

BVA remand dated 03-02-99
Outpatient treatment reports from VAMC Birmingham, AL for the period 07-17-95 to 12-04-96 received 03-26-99
VA examinations dated 10-22-99 and 11-05-99 at VAMC Birmingham AL
Pulmonary function test results dated 11-16-99, received by FAX 01-28-00
Review of the veteran's claim file

 

This is why I am relying on the statutes and regulations provided by the VA:

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.

Whether misplaced or not, the VA has constructive possession. The same VA employee (the C&P doc) authored both sets of exam results.

 

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. 

The Bell v Derwinski sentence fragment, "...regardless of whether the medical records were actually before the adjudicator at the time of the decision", is probably the most interesting.

I anticipate the VA may state the Presumption of Regularity was followed just by vaguely mentioning "Review of the veteran's claim file".

What makes this CUE special is the fact that the C&P doctor stated in writing the initial exam results were misplaced. That is anything but the Presumption of Regularity.

I checked my c-file. Some documents are stamped as being received on certain dates. However, neither of the C&P exams were stamped with receipt dates.

[john999]

What happened to me was that my initial rating decision was made in 1973.  The laws about listing evidence prior to 1992 were different and even though it was obvious to any unbiased reader that the VA did not consider all the evidence in the record it was assumed that the VA had the evidence and considered the evidence before they made their decision as to my rating.  It my case it was absurd because my doctor who was the only doctor who actually wrote an opinion (IME/IMO) on the case said I was totally disabled while the VA decided I was only 10% disabled.  My doctor stated that I was unemployed and unemployable while the VA never even bothered to ask that question.  I had a lawyer and I had one of the best and yet because of the law in 1973 I could not prove the VA did not consider my evidence.  I was asked to prove a double negative which, of course, I could not do.  There were so many things wrong with what the VA did with my initial claim and my rating decision and my appeal rights neither me nor my lawyer could believe that we would lose, but lose we did.  I still get angry when I think about my lose at the Court of Vet Appeals and in the Federal Circuit Court.  It was obvious that I was the victim of an injustice, but if VA had of granted my appeal then they might have been on the hook for many more dollars because it would have affected a class of vets and not just me.

If it were me I might just run my CUE claim by a lawyer to see what he/she says before you start on that road.  If you win it would be well worth the 20% you pay the lawyer for actually representing you.  In my case my lawyer would have gotten 20% of 30 years worth of 100% ratings because the VA would have had to go back to 1971 when I file the original claim and correct the record up to the year 2001 when I got P&T anyway.  My claim is in the Court record and I have read it more than once.  I don't look at it any more because it burns me up.  My lawyer spent quite a bit of his own money representing me and never got a dime as far as I know.  This is why these lawyers shy away from dealing with old VA claims because the VA has a million ways of wriggling out of paying.  Anyone who thinks an old CUE is easy to win needs to think again, but I would still try it.   That word  "Undebatable" was what really shot me down because the VA brought up the idea that the facts in my claim were not "undebatable".  One doctor who was not even identified said I was 10% and my doctor who wrote an IME with all the facts enumerated said I was 100% and totally unemployable made the rating question "debatable".  Vync….I hope you win and I hope in your case I am completely wrong.  Your claim sounds strong to me.

                                           John

                        

[Vync]

@john999

Thanks for the support. I appreciate receiving the Devil's Advocate advice and personal experiences because it is obvious that it is an uphill battle.

I agree with you about a doctor who was never named (Doctor who?). That sounds to me like the most debatable facet. That just stinks.

A lawyer sounds like a good idea. Is CUE a one shot deal or if I filed and lose, could I still revisit it with a lawyer?

[Buck52]

Vync, We learn something everyday  especially on these CUE 

I still think you have a good case  based on your research of the provisions you put up.

However you need to consider this which you have research some of these:

''a.  Definition:  CUE    The court, in Russell v Principi, 3 Vet. App. 310 (1992), held that a  clear and unmistakable error (CUE) exists if all three of the following requirements are met ''

either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied,
the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and
the determination must be based on the record and the law that existed at the time of the prior adjudication in question.

CUEs are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. 

References:  For more information on the definition of CUE, see
38 CFR 3.105(a)
Grover v. West, 12 Vet. App. 199 (1999)
Wilsey v Peake, 535 F.3d 1368 (Fed. Cir. 2008)

b.  Provisions of 38 CFR 3.105(a)    38 CFR 3.105(a) provides that if a CUE is established in a previous, final and binding decision, then the 

previous decision is reversed or amended, and
the effect is the same as if the corrected decision had been made on the date of the reversed decision.

Exceptions: 
''protection of evaluation in effect for 20 years or more under 38 CFR 3.951(b), and
protection of SC in effect for 10 years or more under 38 CFR 3.957. 

References:  For more information on 
revision based on CUE, see 38 U.S.C. 5109(a)
severance and its relationship to CUE, see M21-1 Part III, Subpart iv, 8.E.2 
adverse action resulting from CUE or severance of SC, see M21-1 Part IV, Subpart ii, 3.A.2
reductions in disability evaluations and CUE see M21-1 Part IV, Subpart ii, 3.A.3
the effective date of an allowance based on CUE, see 38 CFR 3.400(k)
protection of disability evaluations under 38 CFR 3.951(b), see M21-1, Part III, Subpart iv, 8.C.1, and
protection of SC under 38 CFR 3.957, see M21-1, Part III, Subpart iv, 8.C.2.

c.  Identifying a CUE    A CUE will fall into one or more of the following categories

the decision maker failed to apply or incorrectly applied the appropriate laws or regulations.  (Note: These legal errors commonly involve pre-reduction due process or the failure to apply a statutory or regulatory presumption)
the decision maker overlooked material facts of record, or
the decision maker failed to follow a procedural directive that involved a substantive rule (a rule that regulates a right). 

''Important:  A duty to assist deficiency such as an insufficient examination cannot form a basis for CUE since such deficiency creates only an incomplete rather than an incorrect record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) and Caffrey v. Brown, 6 Vet.App.377, 384 (1994).''   

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 12-95.

''References:  For more information on 
checking CAPRI even if the claimant does not indicate treatment at a VA medical center, see M21-1, Part III, Subpart iii, 1.C.4.a
potential errors in following procedures, see 
Allin v. Brown, 6 Vet. App. 207 (1994)
Cook v. Principi, 258 F. 3d 1311 (Fed. Cir. 2001), and
CUEs based on VA’s failure in duty to assist, see
Tetro v. Principi, 314 F.3d 1310 (Fed. Cir. 2003)
Cook v. Principi, 258 F. 3d 1311 (Fed. Cir. 2001).

d.  ConsideringRequests for Revision Based on CUE    Determine the precise nature of the allegation when a claimant requests revision based on CUE.  ROs shall deny requests for CUE if the claimants do not specify the factual or legal errors at issue.''

'In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated.  There must have been an error in the prior adjudication of the claim.  See Russell v Principi, 3 Vet. App. 310 (1992).''

''A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis''.

''If the CUE alleged is different from a CUE issue previously rejected, use a rating to determine whether or not a CUE was made on the new issue.''

''Important: If a CUE finding has been determined, it may affect subsequent rating decisions to the extent that revisions in the subsequent rating decisions may be required. See Pirkl v. Shinseki, 718 F. 3d 1379 (Fed. Cir. 2013)''.

''e.  Determining a Case of CUE    When determining whether there is a CUE

consider only 
the law that existed at the time of the prior decision, and
the full record that was before the rating activity at the time of the prior decision (to include medical records in VA’s constructive possession), and
determine whether the error would have by necessity changed the original rating decision.''

Notes:  
''Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.
A new medical diagnosis (not erroneous diagnosis that warrants severance)  that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.''

''Important:  Although CUEs are based on the record that existed at the time of the prior adjudication in question, a CUE finding that SC was predicated on a clearly erroneous diagnosis may be based on evidence that accumulated after the original decision to award SC.  In such cases, if severance of SC is warranted, follow the provisions of 38 CFR 3.105(d).  See Stallworth v. Nicholson, 20 Vet.App.  482,488 (2006) and Daniels v. Gober, 10 Vet.App. 474 (1997).''

''References:  For more information on 
CUEs based on VA’s constructive notice of medical records, see VAOPGCPREC 12-95, and
correcting errors in a rating decision, see M21-1, Part III, Subpart iv, 7.B.3.''

''f.  Applying the Benefit of the Doubt Under 38 USC 5107(b)    The benefit of the doubt under 38 U.S.C. 5107(b) is not applicable to a CUE determination since 

an error either undebatably exists, or
there was no error within the meaning of 38 CFR 3.105(a).''

Reference:  For more information on applying the benefit of the doubt under 38 USC 5107(b), see Russell v. Principi, 3 Vet. App. 310 (1992). 

''g. Approval of Ratings Prepared Under 38 CFR 3.105(a)    All rating decisions preparedunder 38 CFR 3.105(a) require the approval of the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM), or designee at the Coach level or higher. '' 

''Ratings prepared by Decision Review Officers (DROs) require the approval of the VSCM, PMCM, or Assistant VSCM or PMCM if they address
severance of SC, or
a reduction in evaluation of an SC disability(ies).''

''Exception:  Approval of the VSCM, PMCM, or designee is not necessary if the rating decision is the result of a BVA or CAVC decision.''

''h.  Preparing a CUE Decision    Use the table below to prepare a CUE decision ''
 

''statutory and regulatory provisions extant at the time were incorrectly applied.  or what applied to the Law back in  (February 2, 2000) and Dec 1997??''

''As I understand, CUE is decided with the CFR provisions  & case Law at the time of the decision....not based on today's laws.

However what broncovet mention is  scary  ...if they come back on all that?.... which knowing how the VA is they will.''

The VA just as sooo many provisions/Laws and some times we can't find them all.

if you have any doubts about this and after reading broncovets  information from his post above  ,maybe you really need to check out all what bronco mention

 Unfortunately , As for as Appealing a CUE  if it was not decided as CUE and your denied and the CUE Claim closed as a final decision I don't think you can Appeal it.

I believe All CUE Claims decisions are final rather DENIED or APPROVED.

Once a decision is given.

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.

 

 

 

Edited July 23, 2018 by Buck52

[john999]

I would shop your CUE around and see if any lawyer who has done CUE claims in the past and won them will take your claim.  You have to file the claim and it has to be denied and then you start the arduous journey of appealing your CUE claim to the DRO, BVA and Court etc.  This may take time or it could be decided quickly and you could get your CUE as long as it does not set precedents for future claims.  If worse comes to worse I would file the CUE regardless of what anyone says and take my chances.

 

                                 John