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uturn

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

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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.

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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?

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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.

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