Was Remand Followed?

[elcamino_77us]

Good Evening,

I've been absent for awhile, but I finally had my BVA Hearing back in December and was told it would take roughly a year to complete.

My original post is here:

From what I can gather, they're telling me that I need to file a CUE for some of my Claims. For other parts, they are being remanded. 

I will post the Decision here tomorrow.

I'm attaching copies of my current Notes on my case along with:

   Left Knee outline

   Back outline

   2006 C&P Exam

I copied my 2005 BVA Remand into my Notes. I can't see where the Remand Instructions where followed in my 2006 C&P Exam.

I've adding the Outlines so you can see that pertinent SMR's as well as IMO's were ignored.

 

Berta - As you've advised me concerning this in the past, I know I have grounds for CUE. However, I don't want to leave anything out. And ensure I have an Air-Tight Case.

BTW, You're still schooling me in your other Post as I've learned a lot concerning CUE's.

Billy

 

 

 

20060403 VA C&P Exam Results-Spine & Left Knee - Redacted.docx Left Knee Outline.doc Back Outline.doc 2008 BVA Decision Errors.docx

[Berta]

In the past 6 years since the older posts you made here  I have won more CUEs, and others here have too.

My favorite regulation that the VA LOVES to violate is 38 CFR 4.6- I could have used it in every bogus denial I ever got---

so that is something to consider- as Duty to Assist cannot be CUED.

However a strong CUE can garner Benefit of Doubt to kick in.

And don't forget folks, you can file CUE on award letters as well as denials.

 

 

 

 

[broncovet]

Berta posted, 

Quote

However a strong CUE can garner Benefit of Doubt to kick in.

I both agree in part, and disagree in part,  with this statement.  CUE regulations specifically are held to the "undebatable" standard of review, while the "benefit of the doubt" standard of review is much lower.  

These "standards of review" conflict with each other.  On one hand, a case that met the "undebatable" standard of review would also meet the "benefit of the doubt" standard of review.  However, the obverse is not true..if the claimant met the "benefit of the doubt" standard of review, he would not necessarily also meet the "undebatable" standard of review.  Undebatable is simply a higher bar to jump over.  If you can jump over the high bar, you can also jump over the lower bar, but if you jump over the low bar, does not mean you can also jump over the high bar.  

I do recall reading a case where a judge said "divided up" standards of review in the same case.  Me thinks it was a reopening case.  

 

I think this was the case that started the change from "new and material" to "new and relevant" evidence.  

Material evidence suggests the evidence is outcome determinative.  This tended to put a reopen due to 38 cfr 3.156 in a "undebatable" standard of review.  

This is not what the regulation intended..to hold the Veteran to the Cue standard of review with 38 cfr 3.156.  

So, it was changed to "new and relevant" evidence.  "Relevant" is a lower standard than material.   

Specifically with "relevant" evidence, the Veteran is allowed to reopen with "relevant" evidence, and then submit additional corroborating evidence..after the fact..and still qualify for 38cfr 3.156.  

Prior to that, it seems they required the new evidence be "material" and outcome determinative all on its own.  

Now that the newer regulations state "relevant" instead of material, it may boil down to when the cue happened..was it before the wording in the regulation was changed to relevant?  

However, the Veteran, with a law change, SHOULD get the benefit of the doubt, and should get the choice of the more favorable regulation.  

In the event of a regulatory change, the Veteran should get the most favorable regulation applied on a pending claim.  Its not the Veterans fault it takes the VA so long to process his application that congress changes regulations in the interim.  

However, if regulations are "liberalized" (made more favorable to the Veteran), then the Veteran should be able to benefit with the easier criteria on the liberalized regulations.  

The NVLSP, in a blurb of "common effective date errors"  repeated by MOPH, pointed out that, when regulations are liberalized, the Veteran should get the more favorable of the 2 regulations.  Unfortunately, this NVLSP/MOPH blurb was taken down when MOPH shut down.  Im not sure if its repeated in the VBM or not.  

The courts are not allowing VA to hold Veterans to the Cue standard of review when the VA loses the Veterans service records then finds them.  Its not the Veterans fault the VA loses his service records then denies the Veteran as there was no "in service event" documented.  

[Berta]

The 2018-2019 VBM has considerable info on CUE and 3.156 but I guess I view liberalizing regulations as different from changes as to how disabilities are rated.But I agree the veteran should benefit from the most beneficial regulation.

Is this the 2005 remand?

https://www.va.gov/vetapp08/files5/0843700.txt

[Berta]

Under your Docket # in past thread I only found this case.

It is not what I would technically call a remand:

"ORDER Service connection for a left knee disorder is denied.

A compensable disability rating for a low back disability is denied for the period from November 13, 1995 to June 23, 2002.

A disability rating of 10 percent for a low back disability is granted for the period from June 24, 2002 to April 2, 2006, subject to the law and regulations governing the payment of VA monetary benefits.

A disability rating of 20 percent for a low back disability is granted as of April 3, 2006, subject to the law and regulations governing the payment of VA monetary benefits.

https://www.va.gov/vetapp08/files3/0823887.txt

This is an order to pay you comp on the 2 issues you succeeded in.

Did you file  Timely NOA with the US CAVC for the denied issues?

In the older posts I questioned whether your IMOs fit into the IMO criteria here at hadit......

also there appeared to be a valid issue of whether the VA had ignored probative evidence in your SMRs and something else-maybe in 2006  I asked if your VSO had attempted to correct that with a CUE. 

Then I think you were granted "0" for the left knee, did you file a NOD on that rating?

I think, since you have had a  BVA hearing in December , those results hopefully will come to you by the end of this year- not sure----and then ,based on the decision you might be able to file CUE.

Carlie also I think had input into your posts- Carlie was working on her CUE when she died. She was very good at posting CUE decisions from the BVA here-and hoped to succeed in the one she was preparing- we miss her very much.

In the prior posts you said:

whatt did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?"

 

 

Is my statement concerning the Tinnitus being a CUE, correct?"

 

I explained the BVA lingo but I dont know if you ever claimed Tinnitus.

There were what appeared to have been errors in the older posts that should have been corrected ASAP such as inappropriate C & P exam results. We need to correct any bogus crap right away in VA exams or decisions, otherwise they will follow us ad finitum.

I assume your BVA hearing is for a higher than rating of "0" for the left knee....You have time until you get the BVA results to research the CUE forum.

I suggest also reading any of the CUE claims there denied or awarded.

And I also suggest maybe you should purchase the VBM by NVLSP.

 

Most of my CUEs were short and sweet ( well not so sweet) but only one one page, with exhibits enclosed and identified on the first page, that fully supported the CUE.

They need to simplify the issues.

And when the BVA decision comes, it could possibly  open the door to a fairly easy CUE.

If BVA commits CUE , a Motion under CUE has to be filed ( explained on back of th I-9 form.)

If  RO commits CUE it has to be filed against the VARO that committed the CUE.

I have two CUE claims pending against 2 different ROs, but if they do a proper audit, I might not need to even file another CUE .

The AO Nehmer RO provided an "estimated 'payment" to my AOJ. ( AO IHD award)My AOJ RO never questioned the "estimated " amount. I had 3 other financial errors in the past 2 decades that, once corrected ,involved additional 98,000 plus to me.However those audits were corrected by RC and General Counsel.. because my letters to my RO on the errors were ignored so this one I asked the OIG to correct , as well as the two directors of the two ROs involved.Got a RO letter that indicates they appear to be doing that.

 

The CUEs I had prepared were more involved than CUEs should be ,because of another situation, that is also being rectified. Otherwise they could have been simplified.

 

 

 

 

 

 

 

 

[elcamino_77us]

Thanks Berta,

No, I never did Appeal it due to Personal Reasons.

You're 100% Correct, a CUE cannot be based on "Failure to Assist."

From my 2005 BVA Remand Instructions

Citation Nr: 0530230

REMAND

The veteran seeks service connection for a left knee
disability.  Service medical records indicate he was treated
for left knee pain during service; however, an April 2003 VA
orthopedic examination found no evidence of a current
disability.  Subsequent to that examination, the veteran
submitted a May 2005 medical opinion statement from J.N.L.,
D.C., who stated the veteran had an unspecified
"neuromusculoskeletal condition" involving his knee, and
this disability was the result of injuries sustained during
military service.  Because this opinion raises the
possibility that the veteran has a current left knee
disability which began during military service, a new VA
medical examination must be afforded him.  The VA has an
obligation to obtain such an examination when it becomes
necessary to substantiate the claim.  38 U.S.C.A. § 5103A (d)
(West 2002 & Supp. 2005). 

The private May 2005 medical opinion also indicates the
veteran has been treated by Dr. L. since November 2001 at the
Lawson Chiropractic Clinic.  However, the clinical records of
this treatment have not been obtained by VA.  VA is obligated
to inform the veteran of any medical or lay evidence not
already of record which is necessary to substantiate the
pending claim.  38 U.S.C.A. § 5103 (West 2002 & Supp. 2005). 
Clearly, the veteran's treatment records from the Lawson
Clinic are pertinent to his pending claims regarding
disabilities of the low back and left knee.  VA is also
obligated to make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate his claim. 
38 U.S.C.A. § 5103A (West 2002).  This duty includes
obtaining pertinent medical records identified by the
veteran.  38 U.S.C.A. § 5103A(b) (West 2002).  Therefore,
medical treatment records from the Lawson Chiropractic Clinic
must be obtained prior to any final adjudication of the
veteran's pending claims. 

The veteran also seeks a compensable initial rating for his
service-connected lumbosacral strain.  This disability is
rated based, in part, on the limitation of motion of the
affected joint or group of joints.  38 C.F.R. § 4.71a,
Diagnostic Code 5237 (2005).  Regarding orthopedic
disabilities, the United States Court of Appeals for Veterans
Claims (Court) has held that criteria which provide a rating
based on limitation of motion require consideration of
38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to
functional loss of the joints due to pain, etc.).  See DeLuca
v. Brown, 8 Vet. App. 202 (1995).  Therefore, to the extent
possible, the degree of additional disability caused by
functional losses, such as pain, weakened movement, excess
fatigability, or incoordination, should be noted in terms
consistent with applicable rating criteria. 

However, such has not been accomplished in the present case. 
While the veteran underwent VA orthopedic examination in
April 2003, the examiner did not state whether the veteran
had any additional impairment or functional loss due to such
factors as pain, pain on use, weakened movement, excess
fatigability, or incoordination.  VA is obligated to make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate his claim.  38 U.S.C.A. § 5103A
(West 2002).  That duty to assist includes providing a
medical examination when such an examination becomes
necessary to substantiate the claim.  38 U.S.C.A. § 5103A(d)
(West 2002).  Based on the above, this claim must be remanded
to the RO in order to afford the veteran a VA examination
which considers all lumbosacral spine impairment present. 

The veteran has also submitted directly to the Board private
medical treatment records of his low back received in June
2005.  Since this evidence has not been considered by the RO,
the agency of original jurisdiction, and a waiver of such
consideration was not submitted by the veteran, this evidence
must be considered by the RO prior to any consideration of
such evidence by the Board.  38 C.F.R. § 20.1304(c) (2004);
Disabled Veterans of America v. Secretary of Veterans Affairs
(DAV v. Sec'y of VA), 327 F.3d 1339 (Fed. Cir. 2003). 

The Board also notes that during the course of this appeal,
the criteria for the evaluation of lumbosacral strains were
modified.  See 68 Fed. Reg. 51454-58 (August 27, 2003)(to be
codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43). 
When a law or regulation changes while a case is pending, the
version most favorable to the claimant applies, absent
legislative intent to the contrary.  See Dudnick v. Brown, 10
Vet. App. 79 (1997).  Revised statutory or regulatory
provisions, however, may not be applied to any time period
before the effective date of the change.  See 38 U.S.C.A.
§ 7104(c) (West 2002); VAOPGCPREC. 3-2000 (April 10, 2000);
Rhodan v. West, 12 Vet. App. 55, 57 (1998).  Therefore, the
veteran's low back disability must be evaluated in light of
the both the current and prior criteria for spinal
disabilities. 

Therefore, in light of the above, this claim is remanded for
the following additional development: 

1.  The RO should contact the veteran and ask
that he identify all sources, to include the
Lawson Chiropractic Clinic, of private
medical treatment not already of record for
his service-connected lumbosacral strain and
his claimed left knee disability.  He should
also be requested to furnish signed
authorizations for release to the VA of
private medical records in connection with
each non-VA source identified.  Additionally,
the RO should request that the veteran
provide information as to the dates of any
treatment for these disabilities at any VA
Medical Center (VAMC) since March 2005. 
Copies of the medical records (not already in
the claims folder) from all sources should be
requested.  All records obtained should be
added to the claims folder.  If requests for
any private treatment records are not
successful, the RO should inform the veteran
of the nonresponse so that he will have an
opportunity to obtain and submit the records
himself, in keeping with his responsibility
to submit evidence in support of his claim. 
38 C.F.R. § 3.159 (2005).  The RO should also
request or tell the veteran to provide any
evidence in his possession that pertains to
his claim.  Furthermore, the veteran should
be specifically informed as to what portion
of evidence he is required/expected to
submit, and which portion of the evidence the
VA would attempt to obtain in order to assist
the veteran in substantiating his claim, per
38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v.
Principi, 16 Vet. App. 183 (2002). 

2.  The veteran should be scheduled for a
VA orthopedic examination in order to
determine the impairment resulting from
his service-connected disability of the
lumbosacral spine.  The claims file
should be reviewed by the examiner in
conjunction with the examination.  The
examination should include full range of
motion studies, X-rays, and any other
tests considered necessary by the
examiner.  The examiner should provide
ranges of motion for the thoracolumbar
spine, reflecting forward flexion,
extension, left and right lateral
flexion, and left and right rotation.  In
testing range of motion of the veteran's
thoracolumbar spine, the examiner should
note if the veteran has any additional
limitation of motion due to such factors
as weakness, fatigability,
incoordination, restricted movement, or
pain on motion.  The examiner should also
determine the frequency and duration of
any incapacitating episodes resulting
from the veteran's lumbosacral spine
disability.  Any other disability, to
include any neurological disability,
resulting from the veteran's lumbosacral
strain also should be noted.  The medical
basis for all opinions expressed should
also be given.

3.  The veteran should be scheduled for a
VA orthopedic examination to determine
whether he has a current left knee
disorder, and whether such a disability
is due to or the result of an injury
sustained during military service. The
veteran's claims folder should be sent to
a VA physician for review in conjunction
with the examination.  A complete
orthopedic examination, to include any
clinical tests considered necessary by
the examiner, should be conducted.  After
fully reviewing the record and examining
the veteran, the examiner should state
whether the veteran does in fact have a
current disability of the left knee.  If
so, the examiner should also state
whether it is at least as likely as not
(that is, a probability of 50 percent or
better) that the veteran's current left
knee disorder began during military
service, or is otherwise etiologically
related to any in-service disease or
injury.  The medical basis for all
opinions expressed should also be given. 

4.  Thereafter, the RO should again
consider the veteran's pending claims in
light of any additional evidence added to
the record.  In readjudicating the
veteran's increased rating claim, the RO
should take into consideration 38 C.F.R.
§§ 4.14, 4.40, 4.45, 4.59, and the
holding in DeLuca v. Brown, 8 Vet. App.
202, 204-7 (1995).  If the benefits
sought on appeal remain denied, the
appellant and his representative should
be furnished a Supplemental Statement of
the Case and given the opportunity to
respond thereto. 

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The appellant need take no action
unless otherwise notified.  VA will notify the appellant if
further action is required on his part. 

The purpose of the examinations requested in this remand is
to obtain information or evidence (or both) which may be
dispositive of the appeal.  Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2005)
failure to cooperate by attending the requested VA
examination may result in an adverse determination.  See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 

The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded. 
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner. 
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
 

I highlighted/Bold Type my main points.

Looking at my 2006 C&P Exam did they take Deluca into consideration. I believe that Both the C&P Exam along with the 2008 Decision failed to correctly take Deluca into consideration. By failing to follow the Previous BVA's Remand Instructions would be grounds for CUE.

She also Completely ignored SMR's and IME's showing Diagnoses of Arthritis in my knee and back, also another CUE

[elcamino_77us]

Berta,

MY VSO didn't really do anything except make a Mess of my Claims.

Update:

Through a CUE Claim, I was able to get an EED for my Tinnitus to Day after discharge.

My Left Knee is SC at 10%. I appealed that it should be 20% and got a Remand as the Examiner, her words or close to them,  didn't care where My Pain started cause she was going to get my Full Range of Motion, and she didn't even use a Goniometer.

My Right Knee was previously SC'd. On 30 Jan 2018, TKR 30% plus 20%  for Scars. I had to fight for that. At first the VA didn't want to SC the TKR and Scar, but someone with some Brains reviewed it and approved it at the RO even though I had already filed an Appeal to the BVA.  

 

Billy