Is it CUE to infer a secondary condition, deny it on direct SC only....

[uturn]

Hi. Here's what I've got. In 2014 I sought SC for SLE. The VARO inferred secondary conditions listed in my supporting statement. Because they did that I submitted DBQs from docs stating those were secondary to SLE. I also submitted STR evidence that I had symptoms of both SLE and the secondaries in service. The SLE was denied July 10, 2015 and also secondaries of Fibromyalgia and Sjogren's Syndrome. A third secondary for Raynaud's remained open, and I had a C&P exam on July 17, 2015 which opined that my service records were not specific enough for DIRECT SC, and it said nothing about secondary since the SLE was not on the table, having been denied the week before. The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR. That was granted on September 11, 2015. In the same letter my Raynaud's secondary condition was denied, but only contained a discussion of lack of specific symptoms for DIRECT SC. But of course the back of the rating letter lists my expert Raynaud's DBQs as secondary to SLE as "in evidence."  It seems clear to me that they denied the Raynaud's on a sort of separate track from the SLE that they granted, and once they granted the SLE they neglected to go back and consider my Raynaud's as secondary to my now SC SLE.  I had 2 or 3 expert opinions linking the SLE and Raynaud's. Is this CUE?

As for the Fibromyalgia and Sjogren's... the originally had inferred these secondary conditions to SLE but denied them on a direct basis at the same time as my SLE denial on July 10, 2015.  Once they upon reconsideration granted my SLE in September of 2015, was it CUE not to infer those conditions also for reconsideration? They had inferred them in the first place. They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. 

Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? 

Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. And there were a few VA notations of me "appearing depressed" as well during other treatment visits. So I argued to the VARO that it was CUE not to at least just grant the SC with a zero percent rating. Even if they had gotten a C&P exam, I had two experts, one an SSDI doctor, stating that my depression was secondary to SLE. Is that not CUE? 

Sorry to ask so many questions at once.

Thanks very much.

[Berta]

Yes many questions-

I have some for you-

By SLE do you mean systemic lupus erythematosus?

You stated:

  "Once they upon reconsideration granted my SLE in September of 2015, was it CUE not to infer those conditions also for reconsideration? They had inferred them in the first place."

Even if they did it is too much to expect them to again infer them- some of these RO people can barely read (in my opinion)

"They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. "

You might have a basis for CUE -is that the last decision prior to the Sept 2015 award for the SLE?

BUT- did those expert reports make it very clear that the secondaries were due to the SLE?

"Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? "

Do you have the BVA case link?

When the BVA makes a legal statement, that can be used to support a claim.I will try to find something on that tomorrow-

Did you file a NOD on these 2015  decisions?

You could certainly re-open with the BVA statement ( best to give them a link and print out of it)and send them the opinions again or the specific regulation ( maybe it is within M21-1MR) and it is so obvious to us here that I cannot remember what reg that would be.Then, if they award the secondaries, you might have a chance to CUE the older denials of them for a better EED than the one that the re-open will garner.

 You said:

"The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR."

I believe you- these C & P docs are awful- but can you prove he/she did not have the private records ?

Are you sure the VA has them? 

Are they listed in the Evidence List of the decisions?

If they are listed as evidence, the VA should have made a statement regarding them.

"Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. "

I feel you should file an IRIS complaint and tell them exactly what you stated above as to your homelessness and send them the citation  you mentioned as to an Original claim--- but this was not the "original' claim -or  was it???

Did the VA ever acknowledge the SSDI records at all?

[Berta]

You might find the info you need as to when  a primary becomes SC, then secondaries can be awarded, with medical evidence of the link:

https://www.google.com/search?rlz=1C1CHBF_enUS695US695&biw=1707&bih=831&ei=CY-ZW7rfFpK6tQXYnJH4BA&q=M21-1MR+secondary+service+connection&oq=M21-1MR+secondary+service+connection&gs_l=psy-ab.12...33358.39930..42502...0.0..0.1909.15098.6-6j1j5......0....1..gws-wiz.......0j0i71j0i67j0i7i30j0i20i263.FpZNlZDOIQo

Try the first M21-1MR link- I cannot copy M21-1MR stuff from Word to here- but it might be within another M21-1MR link in the search link I posted above.

M21-1MR often gives citations of the regs and/or CAVC precedent decisions.

[uturn]

On 9/12/2018 at 6:05 PM, Berta said:

 

By SLE do you mean systemic lupus erythematosus?  YES

You stated:

"They also had listed my numerous expert reports linking those conditions to my SLE, but did no analysis of them because they had denied my SLE claim on the same date of July 10, 2015. "

You might have a basis for CUE -is that the last decision prior to the Sept 2015 award for the SLE?

YES, my original claim was for SLE in August 2014. In my supporting statement I told them of my secondary conditions of Raynauds, Sjogrens and Fibromyalgia. They inferred them into my original claim and then I went out and got DBQs for those by my doctors and submitted them in December 2014. I also submitted a statement from my enlisted Corpsman about symptoms of Raynauds (I wore a parka indoors every day although we were in the Caribbean and complained a lot of my cold hands and feet). Even though he was my only health care provider, they called his statement a buddy statement not medical evidence. 

They denied all of the claims on a primary basis in July 2015. I submitted another expert opinion on the SLE evidence in my STR/SMR that same month and they reconsidered and granted the SLE at 100% 2 months later in September. I did submit a NOD for the secondaries of Sjogrens and FM denied in July but did not state a reason. I had been staying at my Mom's but my time was up there and I was becoming homeless so I had to withdraw the NOD. I did not spend a lot of time analyzing the situation because I was super sick and homeless. Now that I have a home I looked again at the stuff and realized the CUE for the denying the Raynaud's in the September 2015 letter granting the SLE, that they had only considered it on a primary or direct service connection basis. 

BUT- did those expert reports make it very clear that the secondaries were due to the SLE?  YES, very clear, 3 DBQs from specialists for each condition. 

"Also on these secondaries, I have found one Board opinion stating that a rating decision on the primary condition itself is New and Material Evidence to support a request to reopen a claim for a secondary condition to it. But is anyone aware of any better CAVC or more "official" opinions or regulations about this policy? "

Do you have the BVA case link? YES, this might help someone else. I submitted the case with my Request for Reconsideration based on CUE and, if not CUE then for New and Material Evidence. Here's that case: https://www.va.gov/vetapp14/Files4/1428034.txt

When the BVA makes a legal statement, that can be used to support a claim.I will try to find something on that tomorrow-

Did you file a NOD on these 2015  decisions? I did but withdrew it when I got my 100% for SLE because I was very sick, and also homeless. 

You could certainly re-open with the BVA statement ( best to give them a link and print out of it)and send them the opinions again or the specific regulation ( maybe it is within M21-1MR) and it is so obvious to us here that I cannot remember what reg that would be.Then, if they award the secondaries, you might have a chance to CUE the older denials of them for a better EED than the one that the re-open will garner.

 You said:

"The examiner did not review my claims file or private medical records, including the DBQs noting that my Raynaud's was secondary to SLE. I sought reconsideration of the SLE claim denied July 10 with a THIRD expert opinion on the symptoms in my STR."

I believe you- these C & P docs are awful- but can you prove he/she did not have the private records ?  YES the C&P states that my Claims File was not reviewed, nor any VA or private medical records. Only my STR/SMR was reviewed. 

Are you sure the VA has them?  YES

Are they listed in the Evidence List of the decisions? YES

If they are listed as evidence, the VA should have made a statement regarding them. THEY ONLY LISTED THEM AS CONSIDERED IN THE BACK OF THE LETTER. They did not mention in the letter, within the condition denials that they were denied for secondary connection, only that there was insufficient evidence connecting them to my active duty service. 

"Also, on CUE, do you think it was CUE to deny a secondary depression claim outright for a missed C&P for which I did not get notice? They had my homeless certifications in my file. And the regs say that they cannot deny an original claim solely for a missed C&P. I had submitted statements on my status, my granted SSDI records finding depression secondary to SLE that they obviously considered severe, and also my therapists SSDI questionnaire. "

I feel you should file an IRIS complaint and tell them exactly what you stated above as to your homelessness and send them the citation  you mentioned as to an Original claim--- but this was not the "original' claim -or  was it??? The secondary depression I added at some point to the claim myself. I have full social security for depression secondary to SLE. So I think I added it during my reconsideration request for SLE in 2015. In my recent letter to them I told them it was CUE to deny that claim based on the missed C&P since there were two expert opinions in my social security records that I had submitted to them, finding it was secondary to my SLE. They should have granted with a zero percent rating in my case. I quoted the missed C&P rule in my letter. The rule is that they cannot just deny solely based on a missed exam but must evaluate the evidence that they do have. 

Did the VA ever acknowledge the SSDI records at all? YES it is in the letter. I had submitted the records myself to them. 

 

The VARO reopened my claim. I don't know whether they did so based on CUE or New and Material Evidence of my primary SLE being granted in September 2015. But either way I will get my secondaries rated and get my SMC-S for rating at 160%, almost certainly. I can then use the CUE for Raynauds denial and possibly also the Depression denial for a different CUE, to try and get back pay to 2014 for Raynauds and 2015 for Depression. They also reopened my Sjogrens and Fibromyalgia, but probably those are NEWM and not CUE since they are entirely secondary and I had not been service connected when they were denied..... Unless it is CUE not to re-infer them when the primary is reconsidered and granted. Only 8 weeks went by between the total denial and then SLE grant on reconsideration, and the 3 SLE DBQs all stated that I had secondary Raynaud's, Sjogren's and Fibromyalgia. I also had submitted separate DBQs for each condition, actually 2 separate expert DBQs for each condition. 

They reopened and scheduled C&Ps for me for next week. For Sjogren's, Raynaud's and Fibromyalgia I have a general medical C&P and a blood test scheduled. I don't know how a general medical will trump all of the specialist DBQs already in my file. Hopefully it is just for the current status of my condition. But they scheduled also a blood test, and there IS NO BLOOD TEST for any of these conditions. So that is bizarre to me. None of those has bloodwork indicators. 

They scheduled a psych C&P next week too, right in Florence SC, which is FLOODED by the hurricane! So I am trying to get my C&Ps rescheduled again. Also my car was damaged in the hurricane so I cannot drive it and they have no rides because the C&Ps are 2 hours away. I am not having success reaching someone to reschedule them again.

Thanks for your response and your time Berta! Sorry for the delay in responding, I have been evacuated and did not check back here before today. I will post my final results here as well. Thank you. Jennifer

Edited September 22, 2018 by uturn
changed last answer re SSDI records

[uturn]

On 9/12/2018 at 6:19 PM, Berta said:

You might find the info you need as to when  a primary becomes SC, then secondaries can be awarded, with medical evidence of the link:

https://www.google.com/search?rlz=1C1CHBF_enUS695US695&biw=1707&bih=831&ei=CY-ZW7rfFpK6tQXYnJH4BA&q=M21-1MR+secondary+service+connection&oq=M21-1MR+secondary+service+connection&gs_l=psy-ab.12...33358.39930..42502...0.0..0.1909.15098.6-6j1j5......0....1..gws-wiz.......0j0i71j0i67j0i7i30j0i20i263.FpZNlZDOIQo

Try the first M21-1MR link- I cannot copy M21-1MR stuff from Word to here- but it might be within another M21-1MR link in the search link I posted above.

M21-1MR often gives citations of the regs and/or CAVC precedent decisions.

Thank you I will look at this. 

[broncovet]

It would take a review of your file to determine if there was CUE.  However, you dont want to go filing CUE, on a pending claim especially that has been reopened due to N and M Evidence, 38 CFR 3.156 b or 3.156 C.  

 

Cue only applies to finally adjuticated claims, so if yours is pending (being reopened), you dont want to file CUE.  

Many times, in fact, most of the time, a real CUE (you know, the winner winner chicken dinner kind), is something overlooked by the Veteran, because it takes a great grasp of the regulations to understand when/why/how a CUE would happen.  (Which Berta has).  A collateral attack on a decision based on CUE really needs to specify the particular regulation which was violated in the CUE.  "That doesnt seem fair to me" wont cut it.  Berta often alleges Cue based on a violation of  38 CFR 4.6, and she has mastered that one.  

[uturn]

I got it reopened based on CUE, that was the CUE talk. I posted my question and filed my reopen claim on eBenefits with a statement pointing out the CUE on two counts. First was that they denied my secondary Raynauds in the same letter that they granted my Primary Systemic Lupus (SLE). They had denied the SLE on July 10, 2015 and then gave me a C&P for Raynauds as direct SC on July 17, 2015. The examiner did not consider the secondary illness aspect because the SLE was denied on July 10. So when they reconsidered the SLE claim and granted it 2 months later they just included the denied Raynauds direct SC claim in that letter without going back and asking the examiner to consider whether the Raynauds was secondary to the SLE. I had 3 expert DBQs on file saying it was secondary, and their examiner did fill out the form on the status of my condition, so it was CUE not to review the claim for secondary once they determined that the primary was service connected. The failure to review that evidence at all was the CUE and it was outcome determinative since several experts were unopposed on the fact that it was secondary. Some things really are CUE. 

The second CUE was denying my depression secondary to lupus claim because I missed the C&P, because they had 2 expert opinions in front of them already that my depression was caused by SLE. One of those was from a social security administration examiner. So they had no opposing opinion on the secondary nature of it and knew that the SSA considered it completely disabling. It was CUE not to grant the claim, even with a zero percent rating. There's a reg. that says they are not allowed to deny a claim solely for a missed C&P but must examine the evidence if it exists. They did have that evidence. So that was CUE because it dictated a favorable outcome. Even if a C&P found no secondary connection, that would be outweighed by the two expert opinions finding otherwise. So that claim was reopened. 

The other two conditions secondary to SLE I did not claim but were inferred by the VA and then analyzed on a direct basis even though I had told them that they were secondary. So those claims were denied alongside my original SLE denial in July 2015. The question is whether if they infer conditions as secondary to SLE and deny them along with the primary condition, but reconsider and grant the primary a month or two later, are they not also required then to REINFER the secondary conditions and consider that secondary condition evidence that they ignored before? Probably that also is CUE only because they inferred the conditions in the first place so should have inferred their reconsideration. But regardless I gave them a BVA opinion stating that the grant of the primary is itself NEME - new and material evidence - to reopen the secondary claims. 

So I will have to wait and see what effective date they give me for my SMC-S benefit, but I do believe that the foregoing errors rise to the level of CUE and will be sufficient to get me an effective date of September 2015 when the original SLE claim was granted. 

That is true I'm sure that CUE is hard to win. I was already final in my decisions because I did not appeal (I had filed a NOD but cancelled because I was too sick and homeless and could not follow through with it). So I had no appeal pending. I quoted the reg relevant to the rule on missed C&Ps. I did not quote the one you cite above but that one is the right one applicable to examining all the evidence, and that fits the Raynaud's CUE. And also maybe the other conditions secondary I claimed, because the SLE DBQs stated outright that those conditions were secondary to my SLE, so that should have led them to reexamine those conditions. 

When I made this original post I had just put up my new reopen claim on eBenefits and wanted some insights from you all on whether they would reopen. They did, for all 4 conditions. So that is great. I will post how that turns out here. I think I will get that earlier effective date and if I don't I will appeal through the RAMPS process rather than CUE, but the grounds will be the same CUE arguments above. I was a practicing attorney before I got too sick to work, and wading through regulatory stuff was my specialty. I wish I was not so sick and could help other people with their claims too, but I am only well enough even to work on my own stuff intermittently. I really appreciate yours and Berta's insights.

I am no expert on VA laws, but so far I think what works for me is what always worked for me as a lawyer and that is to understand the issues and convey them to the VARO in a way that is easily digested by the reader. For original claims, the key is simply to trump their evidence with your own. If you have to keep submitting different expert opinions, eventually the scales will tip in your favor. If you have to appeal, and the grounds are solid, DESPITE WHAT VA LAWYERS ADVISE, submit that request for reconsideration explaining exactly what the error is in one or two pages only. It has to be a clear error for them to really "fix" their decision, but it doesn't have to be officially "CUE." They don't want their track records messed up either. So an obvious error does prompt them to respond, in my experience. That can be just a request for a DRO review attached to a NOD, but it is quicker to just request it without the NOD, in a letter. On the other hand, I know Berta has been jerked around even with her CUE claims, and CUE is clear and UNMISTAKABLE error. The difference is this, for CUE you must have an obvious error that is OUTCOME DETERMINATIVE. The result in your favor must be obvious and undeniable based on the evidence they had at the time. Also CUE requires a final decision first, so you cannot be in the appeal system at the time. You have to be out of the 1 year period for submitting new evidence also. But for other "obvious errors" you can succeed in getting your claim reopened at any time and even with an appeal pending, if you can characterize the obvious error succinctly so that they can read your letter and understand their error based on just that. I am very lucky that this has worked for me, I know. Thanks for your time!