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

[kanewnut]

2 hours ago, Buck52 said:

'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)''.

I am thinking this says you can't file it and then have a lawyer refile it if you loose.

[Berta]

Vync- this is a Beauty!!!!!!!!!!!!!!!!

I regret wont be here much for a while because I am preparing  another CUE -and after reading through my stuff, I see it as about 3 CUEs in one-

You have prepared this exactly how a valid CUE must be prepared- you have hit them right away with the regulations they broke-

You are using M21-1MR and a General Counsel Pres Op. !!!!!!   Yum Yum

I am using M21-1MR  as well and 2 General Counsel Precedent Opinions.

CUE is NOT a One Shot deal-I have made that point here many times with quotes from the BVA on that-

"I am thinking this says you can't file it and then have a lawyer refile it if you loose."

It does not say that at all...I dont have time to find my past many posts on that issue.

You also can file more than one CUE on one decision- been there done that myself---

Buck

14 hours ago, Buck52 said:

 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.

can you give us a link for this above info the CUE "Warning"- it is not correct--as I just mentioned before here -I filed 4- maybe 5 CUEs on one decision. All Awarded.

That is not what M21-1MR says- thanks for posting the excerpt from M21-1MR- it has to be read VERY carefully.

The CUE I am working on now might well contain another separate CUE on the 1998 decision that contained 4 or 5.

All denials of CUE can be appealed to the BVA and also the CAVC. The CUE winners I have posted links to here in the CUE forum are from either the BVA or the US CAVC ( and COVA for the older awards such as Myler V Derwinski)

Vync I commend you for doing your homework!!!!!

One other thing " in Constructive possession"

As I mentioned before . I received 2 ridiculous phone calls from the director of the Buffalo VARO trying to tell me my husband's 1151 stroke which contributed to his death ( established via FTCA/1151) was Total but not Permanent when he died.

In their possession since 1992 was plenty of evidence that he was 100% P & T due to the 1151 stroke.

The only thing that possible was not in their possession at my VARO prior to 2015 ( but I sent it with my accrued claim, was a letter from a Former VA Secretary . R J Vogel, confirming his stroke was 100% P & T ,based on the information he got from the RO...AO Settlement fund, SSA, VocRehab, NYS Div of higher Ed- etc etc.and C & P exam results.

My point is where-ever in the  VA system evidence lies, that is evidence in VA's possession.

I got a friend 100% P & T under 1151 many years ago- what if they tell his wife the same thing after he dies-

Any death from an established 1151 disability ,whether immediate cause of death or contributing cause per Death Certificate, and also in my case, autopsy is a PERMANENT disability.

what if VA tells ANY surviving spouse- yes he/she was 100%  SC for 10 continuous years ( not 1151 but direct SC )but the disability was NOT Permanent? What will you do then?

Nothing-if you have died.Your spouse will probably have to get a costly IMO

I will keep an eye on this thread- I dont have time to answer any other posts.....

 

 

 

 

 

 

 

 

 

 

 

 

[Buck52]

Yes Ms berta   its  3.9

 my source is  ''Askvetfirst'' in reference to the CFR

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

[Buck52]

Ms berta

I also thought Vync Nailed this  but after broncovet post  I have to rethink??

so what about what ''broncovet'' posted above...if they go by that in Vync claim  it don't look to favorable? I am confused somewhat about the 

''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,''

this would be CUE  Right?

Edited July 24, 2018 by Buck52

[Berta]

Their information is wrong- I sure am glad I have plenty of Malware-I picked up a threat as soon as I clicked on their site-

Any actual excerpts there from M21-1MR are correct IF  verbatim to M21- I dont have time to check that-

I Lolled when I read one other thing they stated:

They said a surviving  spouse cannot  file a CUE- where is the supporting regulation for that????

If it was true- my RO would have been very happy to use that regulation against me.I have filed multiple CUE claims as a spouse of a deceased veteran.

 

 

 

 

[Berta]

20 hours ago, Vync said:

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) would not have been performed or considered.

Excellent Vync- I always make the point, ending my CUES by stating  that the error was detrimental to me as the surviving spouse.( meaning they owed me cash)