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

[Berta]

Yvnc said: "Personally, I think the VA is using the regulations in ways the lawmakers did not intend. It's exclusionary. It gives them a reason to look for any argument to churn up debate so they can deny. "

When I see how many CUE claims BVA has awarded over the years ( and by far more vets file them these days)

it shows how correct you are.

1 hour ago, Vync said:

How would one prove the correct facts were not before the adjudicator or not?

It could be something missing in the Evidence list, which you have proof of sending to them, or something they did list but did not address properly in the decision...

For example The VA denied my 1151 HBP CUE claim on March 4, 2015-

They listed as Evidence  the sole piece of evidence I needed:

( copy of OGC request for report from top VA Cardio doctor in VACO, and copy of the responses given)

(The correct facts) If they had really read the claims file- they would have seen this was part of my 1151 DIC award and part of my FTCA case of 1995)

Then they listed as Evidence :

Review of Claims file March 4,2015-(same date of denial)

and a "medical opinion,"  never identified as more than that ( probably done by whoever empties  their RO wastebaskets) which was absolutely bizarre.The evidence I had was from the top Cardio doctor in VACO who is still there and also is an expert on HBP and stroke.

I filed CUE  immediately via USPS priority and Via IRIS as a Complaint.

On April 3, 2015 I got the award. One month later.

In other words they had the evidence they needed to award, and they listed it in the Evidence list, but you cant file CUE on their inability to read.

The CUE was on 38 CFR 4.6.   They must have gotten' Reading for Dummies' from Amazon by then because there was no doubt that my sole piece of evidence, they had in March 2015 , warranted an award.

A CUE denial can be appealed to the BVA and then to the CAVC. I never had a CUE at the BVA or CAVC.

I think ,once I laid out the regs they broke, etc, my RO didn';t want the BVA to ever see the ridiculous denials I have received.They were all resolved at the RO level.One took 8 years, one took 7 or 9 years- and still sat at my RO until AO IHD Nehmer came out and that RO awarded those CUEs immediately.

 

I have prepared every CUE I had ,with BVA in mind.I sure was happy when the RO did say my IHD and SMC CUEs were set for BVA transfer-but never needed to get there.

The BVA can READ.

Almost everything I learned about CUE is from reading BVA decisions on CUE since they first came on line.Denials are as educational as their awards.

 

 

 

 

Edited July 24, 2018 by Berta
have not attached new keyboard yet

[Vync]

48 minutes ago, Buck52 said:

I hear ya Vync

on this'

''How would one prove the correct facts were not before the adjudicator or not?''

I assume the VA would try to say because the evidence section stated "review of veteran's claim file", then that means it was reviewed when the decision was made. But in all other instances where they used a C&P exam, they specifically indicate it and the date.

They never applied it to your claim back then  is what I would think? since they didn't, it obviously was not applied  they can review the facts but if they don't apply it or explain it in there statement of case  then it was not actually reviewed    you could agure this I would think.

However if you can Appeal this CUE if your denied..I'd go ahead and submit it the way you have it written up. but keep in mind you would need new evidence I'm fairly sure.

I am not 100% sure on this about Appealing a CUE? Some say you can...

 

Both exams were initially handwritten by the doc. However, the second exam was dictated and typed into their C&P results template.

I bet the VARO person just looked for what they were used to seeing - properly formatted C&P results, but never bothered to actually look at the handwritten versions.

 

[Berta]

I agree- I bet VA is skimming over plenty of older medical records that were written by hand-for many claimants.

I had to decifer a hand written MRI result , many pages long, years ago that supported the fact that I had discussed with the cardio doctor, (after my husband was sent from Bath VAMC to Syracuse VAMC) something he had already overlooked when my husband's stroke was finally diagnosed properly.

When I prepared my FTCA evidence, good thing I deciphered all that (it took -maybe days- ) because

it  gave a nexus to my very first piece of malpractice evidence ( a VA ER Certificate) for my FTCA case.

I have found 3 CUEs in the decision-I am working on. I am glad I put this off-

Vync , it always pays to put CUEs away for a while because, when you take a break from them and then go back, it is possible to see even more CUEs.

I found another one in a very old decision, in which they did resolve 4 or 5 of them already.

We finally have a new Secretary- --Wilkie has been confirmed.

He will sure be hearing from me. He will be getting copies of my evidence that was verified by phone at the Buffalo VARO , yet was completely ignored in their last denial.

Years ago VA ignored my most probative evidence for a different claim I had - and I sent it to a former VA Secretary asking him to send it to the Buffalo VARO.

He did that for me , sent it under his cover letter -and they Still ignored it. That claim was awarded anyhow- but it just goes to show how they treat widows...just as bad as they treat veterans.

VA makes many CUEs deliberately, in my opinion,as an erroneous denial gets the claim off their desk fast.

As my H VAC testimony showed (during Shreddergate) the VA ignored 12 submissions of my husband's autopsy all sent by certified and Priority mail. My husband was drug and alcohol free but the C & P examiner said his death could have been due to a cocaine overdose.They withheld the autopsy when the files went to the OGC-

I fixed all that in a heartbeat- by aggressively pursuing that- but this is how they will treat any widow/widower who does not have a clue on the VA process.They might well get a VSO who doesn't have a clue either.

 

 

 

 

 

 

 

 

 

 

 

[Berta]

My long point was - make sure you provide copies of anything handwritten to them,that will help- even if you have to decifer it yourself-and type it up.

Also I saw a medical entry handwritten, that I could hardly believe-that stemmed  from the 21 day In house PTSD program my husband was in.and I asked the VA for a typed version.

I got it- it was additional  evidence for my FTCA/1151 claim (malpractice)

[Vync]

Most of the handwritten C&P exam content was readable, but some of it required deciphering.

I initially started poking around with the idea of correcting this error about 10 years ago. After reading some of the stories from other members, I felt it best to push it off until I was more prepared. I had a bunch of other things going on anyway. I don't think I am ready to send it just yet though. I may talk it over with a lawyer or two in order to get their take on it.

[Berta]

Vync -I found a diagnosis of diabetes in my husband's medical records that was crossed out.

This was for my AO DMII death claim. I had already proven to the OGC that not only did one VAMC malpractice on my husband, but another VAMC he was sent to had tried to cover up the malpractice.

The crossed out diagnosis was still barely readable. I blew it up and could read it well The doctor who made this entry had left the VA and went into private practice ( Neurologist). It took me many long months to find him and when I did I emailed him.

He remembered my husband and asked for a few medical records ( to include his crossed out diagnosis)

and he then emailed me a very brief opinion.

My husband , othr than this one crossed out entry, had never been diagnosed with or treated by VA for DMII.

This claim was filed in 2003 and it took years to get to the BVA. (my only case ever there) I did have one other case but was finally awarded that claim  at the regional level, after a battle,  and did not know I should have withdrawn the appeal.BVA correctly rendered the appeal as Moot based on the award I got.

The BVA  gave this brief Neuro opinion ( by then on his formal Neuro letterhead) much weight as it corroborated 2 IMOs I had from Dr. Bash. The BVA awarded in 2009.

I had extensive evidence from the VA med recs, and even from his Drivers license, and Personnel records from when my husband worked at VA, as well as an  EEOC complaint he filed against them.

I know how miserable it can be to decifer stuff.And very time consuming.

Also it pays to have a medical book of medical acronyms as that too became VERY important to me when a VA Endocrinologist  tried to state an acronym I used in my claim ,meant something else-She had done 2 opinions against the DMII claim and I knocked her down every time, and so did Dr. Bash.

I sent the BVA an Excerpt from Merck ( which I used extensivel;y as VA was using Merck Medical Manual at the time- as to what the acronym medically stood for-in the standard medical community.

It pays to read, re-read, and read again and again every single entry in VA Med recs, and understand what each entry means.

That goes for their denials as well, and their so called medical rationale.

Vet reps are not going to do that for us-it is up to us claimants or up to an IMO/IME doctor to do.

I won my FTCA case for wrongful death without a lawyer or even an IMO.

I was determined to find out why my husband died and-had I not been meticulous im my evidence, and taken the time to study every med rec and also cardio, neuro , endocrinology stuff, I could not have been able to succeed at all.

But the AO DMII claim was more important because they had malpracticed on a AO disability.

That granted a direct SC death. There is no Peace with Honor in a 1151/FTCA death.  Because it means the very system that every veteran's service to our country created -( the VA),

is also capable of causing their death. And hoping their survivors will never find out.

You mentioned having a OGCPres Op- GREAT!

I have one I just printed off that is GOLDEN and supports my CUE claim.

We cannot overlook OGC Pres Ops, which are as important as CAVC precedent decisions, to support out claims.

 

 

 

Edited July 26, 2018 by Berta
have not attached new key board yet- I go through them fast