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CUE My latest VA denial for TDIU


kanewnut

Question

I think this is very similar to dawsonatl's Unwarranted TIDU Denial Letter Received. I find myself getting fairly confused trying to figure out if I just keep this to the latest decision or do I add in some of the prior decision because they refer to it in evidence. I have worked on this a little at a time for quite a few days. I didn't want to just copy dawsonatl's but his is a very good example. What I had in bold did stay when I copied my draft. Your thoughts are appreciated. I am pretty sure this will be the first of many CUE's I will be filling.
 


DEPARTMENT OF VETERANS AFFAIRS
CLAIMS INTAKE CENTER
PO BOX 4444
JANESVILLE, WI 53547-4444

Current Date 2019

Dear Sir/Madam:

This is a CUE claim on a decision on 12 July 2019 based on a CUE, clear and unmistakable error, based on 38 CFR 3.105(a).

From the 12 July 2019 decision -
Letter from Vocation Rehabilitation and Employment Division show that your primary physician stated you are unable to work and that your service connected conditions. Did the rater mean to say “ that your service connected conditions are permanent in nature.”
From the 12 July 2019 decision - 
We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment. 38 CFR 3.102 The rating examiner failed to apply this section of Federal law because two differing opinions exist in equipoise and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.3 The rating examiner failed to apply this section of Federal law because as stated above, two differing opinions exist in equipoise  and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.2 The rating examiner failed to apply this section of Federal law because they failed to consider the finding by my primary physician that confirms that I am incapable of maintaining employment due to my service connected disabilities. M21-1 The rating examiner applied their own medical conclusions when despite my primary physician stating that I am unable to work, the VA examiner decided that I am capable of working.

In the 12 July 2019 decision the rating examiner stated “the evidence of record does not show that you terminated your employment due to your service connected disabilities.” This is irrelevant. See M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU) IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
voluntary withdrawal from the labor market.


In EVIDENCE you listed the Rating Decision, dated  May 9, 2019
In the May 9, 2019 rating decision the rating examiner stated “Your back condition shows that it may limit you from performing physical labor but does not sedentary employment.”  38 CFR 4.6 The rating examiner failed to apply this section of Federal law because they failed to consider the facts in the record from my VA Form 21-8940’s showing that   
I performed sedentary employment from September 1985, when I left the Army, until June 2000 when I became too disabled to perform sedentary employment. My VA Form 21-8940’s show employment as a computer programmer. This is sedentary employment. This is a fact of the record.

This decision would be manifestly different if 38 CFR had been followed correctly and the correct rating decision had been made.
These errors in application of 38 CFR have manifested a detrimental outcome to me by being denied individual unemployability that I am entitled to because of the symptoms that I suffer from daily due to my service connected disabilities that prevent me from any employment.
Please correct these errors that will subsequently approve me for individual unemployability and apply the earliest effective date possible.

I have included the relevant M21 sections that you have failed to follow.
I have included relevant U.S. Court of Appeals decisions.

Respectfully submitted,

My Name
My SSA

Attachment #1 12 July 2019 Decision
Attachment #2 9 May 2019 Decision
Attachment #3 VR&E decision letter
Attachment #4 SSDI Decision
Attachment #5 M21-1 III.iv.5.A.3.e
Attachment #6 M21-1 IV.ii.2.F.4.c
Attachment #7 VA Form 21-8940

38 CFR § 3.105 - Revision of decisions.
§ 3.105 Revision of decisions.
The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.
(a)
(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended.
(i) Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied.
(ii) Effective date of reversed or revised decisions. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.
(iii) Record to be reviewed. Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. The duty to assist in § 3.159 does not apply to requests for revision based on clear and unmistakable error.
(iv) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the decision being challenged, there has been a change in the interpretation of the statute or regulation.
(v) Limitation on Applicability. Decisions of an agency of original jurisdiction on issues that have been decided on appeal by the Board or a court of competent jurisdiction are not subject to revision under this subsection.
(vi) Duty to assist not applicable. For examples of situations that are not clear and unmistakable error see 38 CFR 20.1403(d).
(vii) Filing Requirements - (A) General. A request for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the requesting party or that party's authorized representative. The request must include the name of the claimant; the name of the requesting party if other than the claimant; the applicable Department of Veterans Affairs file number; and the date of the decision to which the request relates. If the applicable decision involved more than one issue, the request must identify the specific issue, or issues, to which the request pertains.
(B) Specific allegations required. The request must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence.

38 CFR § 3.102 Reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

38 CFR § 4.2 - Interpretation of examination reports.
Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

38 CFR § 4.3 - Resolution of reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See § 3.102 of this chapter.

38 CFR § 4.6 - Evaluation of evidence.
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.

38 CFR § 4.16 - Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service- connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

M21-1, Part III, Subpart iv, Chapter 5, Section A - Principles of Reviewing Evidence and Decision Making

Topic 3 Evaluating Medical Evidence

III.iv.5.A.3.e.  Basis for Rejecting Medical Evidence
     
The rating activity may not rely upon its own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.
Reference:  For more information on the basis for rejecting medical evidence, see
Shipwash v. Brown, 8 Vet.App. 218 (1995), and
Colvin v. Derwinski, Vet.App. 175 (1991).

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.2.j.  When to Obtain VR&E Records in IU Claims
 

Obtain and evaluate any already-existing records of Vocational Rehabilitation and Employment Service (VR&E) consultation
when the evidence indicates that the Veteran underwent VR&E consultation sometime in the past related to a prior VR&E claim, such as (but not limited to)
a Veteran’s report of participation in VR&E
VR&E folder type shown in the Beneficiary Identification and Records Locator Subsystem (BIRLS)
VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, included in the claims folder, and/or
Chapter 31 payments shown in Share
when the evidence of record is insufficient to award IU, and
without regard to the period of time that has passed since the VR&E consultation occurred and records were created.
The VR&E records may document the Veteran’s participation in a training program, or
show that training was not feasible or was unsuccessful. 
Notes: 
The entire Counseling/Evaluation/Rehabilitation (CER) folder is not necessary to adjudicate IU claims that are processed at the RO.  If adjudicating a claim for IU, and the Veteran has an existing VR&E record, request that VR&E provide a completed VA Form 28-1902b, Counseling Record – Narrative Report, in lieu of the entire CER folder.  VA Form 28-1902b contains the necessary information concerning the impact of the Veteran’s SC and NSC conditions on employability.
If the CER folder has evidentiary value that pertains to the pending claim and there is a need to scan the contents of the folder, send a photocopy of the folder to the scanning vendor and retain the original CER folder and its contents at the RO.
Decision review operations centers (DROCs) must request that VR&E provide the entire CER folder when adjudicating Board of Veterans’ Appeals (BVA) remands, as BVA is able to contact the RO directly to request upload of the entire CER folder into the Veterans Benefits Management System (VBMS).
ROs are not required to request VR&E records when a Veteran fails to return the VA Form 21-8940.
References:  For more information on
the RO procedure for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.j
DROC procedures for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.k, and
shipping requirements, see M21-1, Part III, Subpart ii, 1.F.1.b.  

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
 

Determine whether the severity of the SC disabilities precludes the Veteran from securing or following substantially gainful employment. 
 
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
age
NSC disabilities
injuries occurring after military service
availability of work, or
voluntary withdrawal from the labor market.
Reference:  For more information on the discussion to include in the rating decision, see M21-1, Part IV, Subpart ii, 2.F.4.p.


M21-1, Part IX, Subpart i, Chapter 1, Section B - Memorandum Vocational Rehabilitation Ratings
IX.i.1.B.3.e.  Reevaluation on the Basis of Medical Infeasibility
If the Vocational Rehabilitation Panel determines temporary or permanent medical infeasibility for rehabilitation of a Veteran rated less than 100-percent disabled, VR&E will refer the case with a statement of the facts to the rating activity for reevaluation. 
 

Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
Article ID: 554400000063199
Decision Assessment Document
Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
U.S. Court of Appeals for Veterans Claims (Court)

What the case is about:

The Court, noting that under 38 U.S.C. 5107(a) the VA's duty to assist specifically includes requesting information from other Federal departments or agencies and that the Social Security Administration (SSA), under 38 U.S.C. 5106, must "provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto," held that VA violated its duty to assist the veteran by not acquiring the SSA decision and supporting medical records, as the VARO had actual notice that the veteran was receiving SSA disability benefits based upon his unemployability status.  

The Court noted that although the SSA's decision regarding appellant's unemployability is not controlling for VA determinations, it is certainly "pertinent" to the present claim, as the evidence was relevant to the determination of the veteran's ability to secure and follow a substantially gainful occupation under 38 C.F.R. 4.16(c). 

The Court also indicated that the Secretary's duty to assist includes obtaining this evidence from the SSA, and giving it appropriate consideration and weight in its determination to award or deny appellant a total disability rating based on unemployability.  At a minimum, the decision of the administrative law judge at the SSA "is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor." 


Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
Article ID: 554400000081585
Decision Assessment Document
Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
U.S. Court of Appeals for the Federal Circuit 

What the case is about:

The Court held that once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU). 

IV.ii.2.F.4.e.  Considering Occupational History in IU Claims
A Veteran’s occupational history is not determinative of the outcome of a claim for IU unless the Veteran is currently gainfully employed.  However, occupational history is a factor that must be weighed in decision making.  In weighing the relevance of occupational history in claims for IU, consider the factors below.
When a Veteran is currently working or the evidence shows the Veteran is capable of working but unemployed, determine whether the ability to sustain employment is marginal as discussed at M21-1, Part IV, Subpart ii, 2.F.1.d and e.
Consider the difference between unemployment and unemployability as discussed at M21-1, Part IV, Subpart ii, 2.F.1.b.
Voluntary retirement is not necessarily determinative of the outcome of an IU decision.  The underlying impact of the Veteran’s disabilities on the discontinuation of work is the relevant determination. 
As noted in M21-1, Part IV, Subpart ii, 2.F.2.i, SSA decisions are not determinative of the outcome of IU decisions.  However, a Veteran’s application for and/or receipt of SSA disability benefits is a factor to weigh in decision making. 
IU may be granted on a temporary basis as noted in M21-1, Part IV, Subpart ii, 2.F.4.g.
When a Veteran is self-employed, follow the procedures at M21-1, Part IV, Subpart ii, 2.F.3.
Reference:  For more information on weighing evidence in rating decisions, see M21-1, Part III, Subpart iv, 5.A.

A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. 3.340(a). 


IV.ii.2.F.2.a.  General Evidence Requirements in IU Claims
 
A decision concerning entitlement to an IU evaluation in accordance with 38 CFR 3.340, 38 CFR 3.341(a), and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the
current severity of the SC disability(ies) that the Veteran states and/or the evidence indicates prevent(s) substantially gainful employment
the impact of SC disability(ies) upon employability, and
employment status. 
The rating activity must review all evidence and assign corresponding weight as directed at M21-1, Part III, Subpart iv, 5.A, including but not limited to evidence concerning the Veteran’s 
current employment status
past employment history, and
functional impairment arising from SC disabilities as shown by
examinations
Department of Veterans Affairs (VA) or private medical evidence, and
lay evidence.
Forward a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, to the Veteran if a request for IU is
expressly raised by the Veteran, or
reasonably raised by the evidence of record.

2003-04-09 VA FORM 21-8940 Redacted for Hadit.pdf 2007-12-19 VA FORM 21-8940 Redacted for Hadit.pdf 2009-07-09 VA FORM 21-8940 Redacted for Hadit.pdf

Edited by kanewnut
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2 hours ago, kanewnut said:

My brain just doesn't work very good any more

you are not alone in that and frankly dealing with the VA can twist your mind in all sorts of shapes.

I just don't want you to miss an opportunity by focusing elsewhere.

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  • HadIt.com Elder

Again, I don't see a true CUE-merely an adjudication error that would normally be corrected with a HLR or a NOD to the BVA. Either one is viable but the HLR has a known denial rated in excess of 76%. CUE denial rates are far higher because the legal standard of review is so stringent. 

If everyone is totally gung ho on using M 21 cites to defend this, here's another one that really makes more sense:

 VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified).

Fixing it-- III.iv. 7 B.3.c

Rosinski v Wilkie 2018 - #0678

Always remember, a true CUE is a motion to revise using §3.105(a). That requires, at a minimum, that the original decision is final. A CUE cannot exist unless or until it is a final unappealed decision. As this decision is still ripe for appeal, it is merely error and the correct repair order, by operation of law, is to appeal the error.

But shoot- what do I know?  I am preaching to those who insist on using a different legal standard of review. However, I do offer my best wishes for a successful conclusion in the shortest amount of time. And with that in mind, I will desist and accede to all the others here with far greater legal expertise. 

Edited by asknod
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3 hours ago, asknod said:

Again, I don't see a true CUE-merely an adjudication error that would normally be corrected with a HLR or a NOD to the BVA. Either one is viable but the HLR has a known denial rated in excess of 76%. CUE denial rates are far higher because the legal standard of review is so stringent. 

If everyone is totally gung ho on using M 21 cites to defend this, here's another one that really makes more sense:

 VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified).

Fixing it-- III.iv. 7 B.3.c

Rosinski v Wilkie 2018 - #0678

Always remember, a true CUE is a motion to revise using §3.105(a). That requires, at a minimum, that the original decision is final. A CUE cannot exist unless or until it is a final unappealed decision. As this decision is still ripe for appeal, it is merely error and the correct repair order, by operation of law, is to appeal the error.

But shoot- what do I know?  I am preaching to those who insist on using a different legal standard of review. However, I do offer my best wishes for a successful conclusion in the shortest amount of time. And with that in mind, I will desist and accede to all the others here with far greater legal expertise. 

I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it. Even though a decision may be "ripe" for appeal, if an individual feels like an error has been made, it would be wise and logical to file a CUE or as @GeekySquid stated do both, an Appeal and Cue once you have it perfected. Good luck at @kanewnut, crossing my fingers for you.

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5 hours ago, asknod said:

And with that in mind, I will desist and accede to all the others here with far greater legal expertise.

Well, I doubt there is anyone here with greater legal expertise, but I must say that I got a really good belly laugh from the comment. 

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