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VA CUE Narcolepsy

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jacobbree123

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I am very confused on this situation and was wondering if this seems like i should file a CUE and what i should do or if there is regulations laws i should quote when i submit one.

 

I received my Original C&P exam for Narcolepsy on April 11, 2014 at 10:30am and I feel that the form is intentionally used to discredit and set me the veteran for failure, and lower rating due to not explain to the C&P examiner and the patent that the sleep attacks and other symptoms I was experiencing from (Narcolepsy) is generally rated under diagnostic code 8108 which provides that the disability be evaluated as petit mal epilepsy. Petit mal epilepsy is rated under general rating formula for minor seizures per 38 C.F.R. The new and current Narcolepsy DBQ is different from the one i was given in 2014, and does not mention anything about the relation to a seizure disorder. Also, in the section where it says cataplectic (narcoleptic attack) It is not specified the separation of the two different aspects of narcolepsy. cataplexy is defined as the sudden loss of muscle tone while a person is awake and leads to weakness and loss of voluntary muscle control. A Narcoleptic attack is a bout of extreme day time sleepiness that can last an undetermined amount of time and can cause you to fall asleep. At the time of the exam in 2014 I believe I was not asked about cataplexy or (narcoleptic attacks) both were glossed over even tough in my military records it shows a doctor statement from 27 Nov 2013 at the 5th medical group at Minot AFB, and I quote “The sleep study did diagnose narcolepsy. Patient Falls asleep frequently during the day, ranges from 5-20 times per day.” If you are to review narcolepsy under the current and past C.F.R code. After having a MSLT and a PSG test were doctors monitor you through the night and day this can be interpreted as witness seizures, the doctor at Minot AFB further confirmed this with his statement. Narcolepsy can greatly affect daily activities people may unwillingly fall asleep even if they are in the middle of an activity like driving, eating, or talking which I have. So, under the current and past C.F.R code for narcolepsy Rated under the general rating formula for petit mal seizures states the following.             

Note (1): A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness.          

Note (2): A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type).             

General Rating Formula for Major and Minor Epileptic Seizures:

Averaging at least 1 major seizure per month over the last year  100

Averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly.

 

The statements made and the evidence provided at least qualifies for a rating of 80%. On the C&P exam on his statement it says patient has sleep attacks and under patient statements it says daily so I know for a fact i told him how many it was a day. The page that says 5-20 a day is the first page in my military chronological record of medical care. I am unaware if the ones he had at the time contained this information, or if he saw it and chose to ignore it and not take it into consideration, or he was unaware what a narcoleptic attack was. I believe that there is a clear and undeniable error that the C&P examiner marked the wrong box for the C&P exam under symptoms section B Stating I only have 0-1 attacks every 6 months. The evidence was clear and indisputable and not under interpretation by him because it was a matter of fact. 

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12 hours ago, jacobbree123 said:

The evidence was clear and indisputable and not under interpretation by him because it was a matter of fact. 

Don't take this as trying to discourage you from filing CUE.

We as individuals view things (about our records) as "so clear" that an unbiased reader may would agree with us.

That is the crux of CUE claims, but we as people are often wrong.

Specifically because we are so close to our own claims that we don't have an unbiased view. Factors not obvious influence our reading of the claims info while the outside reader may know those factors or believe they are as significant as we do.

When we file the CUE claim, we have to have our ducks in a row and the language has to be specific, on point and not involve emotional language. Just the laws and rules that were violated.

So for your possible cue. If you upload the relative medical files and denial/award letters with all Personally Identifying Information redacted, people might be able to offer you assistance in how to write your cue.

I am quite sure you are correct in what you claim for the "conditions" and of course there is a significant harm to you if they did create a CUE. What needs to be done is form your claim based on the correct law.

For example part of what you wrote is about the difference in diagnostic codes across different years.

 The CUE has to be based not on today's rules and codes, but on the rules and codes from back then.

so if the evidence and rules from way back when support your claim you can craft an effective, on point, CUE claim that will win your contentions.

If your evidence supports it you would at least have a 4.6 claim, maybe others.

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Also After you have exhausted ALL possibilities of solving your claim through the Adjudication claims system at different levels R.O. being the first level BVA/CAVC & On to the Highest Court.

CUE Claims are the last resort to adjudication.

Also CUE Claims are the most complicate of ALL Claims.

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Is this better? 

 

 

This is a claim of CUE, Clear and Unmistakable Error, Under of 38 USC 5109(a).

 I respectfully request the VA to call a clear and unmistakable error on the part of The  01/24/2014  rating decision that awarded 10% for Narcolepsy. The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the initial rating percentage of 10%.

With respect to the rating of Narcolepsy, the Court has held that the Board must consider the application of 38 CFR §4.124a   Schedule of ratings—neurological conditions and convulsive disorders. Also there may be service records that warrant reconsideration under 38 CFR 3.156(c)(1) That provide clear and undeniable evidence of a higher Rating. If said records were present at the time then under 38 CFR §4.6  Evaluation of evidence 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. provisions of 38 CFR 3.105(a) state that a CUE will fall into one or more of the following. Under each I will reference each referance evidence for the following CUE

1. the decision maker failed to apply or incorrectly applied the appropriate laws or regulations.  

Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. Under 38 CFR Condition 8911   Epilepsy, petit mal is rate under the general rating formula for minor seizures. Attached is paperwork from my chronological record of medical care at 5th Medical Group, Minot  AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” 38 CFR Condition 8911   Epilepsy, petit mal. States A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The second document in reference is the Narcolepsy DBQ completed on April 11, 2014 it states “Has Sleep attacks every day. Does not drive” then under symptoms it lists excessive daytime sleepiness, Sleep Attacks, Sleep paralysis, Sleep hallucinations All of these are marked as yes, but immediately following this under Indicate frequency of cataplectic (narcoleptic episodes) (check all that apply):

Number of cataplectic (narcoleptic) episodes over past 6 months:

[X] 0-1

[ ] 2 or more

Even though the patient statements, and medical evidence shows (narcoleptic) episodes happen daily 5-20 times.

 

Following this section the narcolepsy DBQ states

 

 Has the Veteran ever had major seizures (characterized by the

generalized tonic-clonic convulsion with unconsciousness)?

[ ] Yes [X] No

d. Has the Veteran ever had minor seizures (characterized by a brief

interruption in consciousness or conscious control associated with

staring or rhythmic blinking of the eyes or nodding of the head

("pure" petit mal) or sudden jerking movements of the arms, trunk or head

(myoclonic type) or sudden loss of postural control (akinetic type))?

[ ] Yes [X] No

 

Provided  Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. With the provided evidence that is referenced above both of these boxes should be marked yes.

 

If the 5-20 witnessed Narcoleptic attacks, hallucinations, paralysis, extended bout of reported unconsciousness, rhythmic blinking, loss of control of body, and all of the reported medical evidence was  taken into consideration a rating of 100% would have been put into effect. 

The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision referred to above.

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 4.6

If the Narcolepsy claim was evaluated after review of all the evidence on the Decision Letter dated 01/24/2014 it would have increased my rating from 60% to 100% at the time of awarding.

Respectively submitted,

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This just could be the best CUE I have read.  I liked that, nowhere in your CUE is the term "my opinion" or "I think".  Instead, you cited medical evidence and regulations, including Berta's favorite, 38 CFR 4.6.  

Cover the 4 critieria and it should fly:

1.  Correct evidence was unknown (which means VA did not read it), or regulations were not applied.  The VA is expected to know their own regulations and to comply with their own rules.  The error was based on the facts known at the time of error.  A newer exam refuting the error wont suffice.   If the decision maker relied upon the c and p exam, then that is not cue, the doctor is presumed competent, absent a challenge of competency from the Veteran or his representative.  

2.  The conclusion is undebatable, and not an interpretation or judgement call.  

3.   The error was "outcome determinative" and not harmless error.  

4.  The Cue must be on a final decision.  

Source: https://cck-law.com/blog/cue-claims-how-to-challenge-a-final-decision/

Please permit my rewording of CCK's Cue critiera.   Just do be careful and not try to "cue" the doctor's exam, his exam is not subject to CUE, there are other ways to correct a deficient c and p exam.  

Edited by broncovet
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Third Draft let me know if its getting better or what else needs to be added or changed. thank you everyone for the help so far wish the legend @Berta could weigh in on this, but I know she is probably busy.

 

This is a claim of CUE, Clear and Unmistakable Error, Under of 38 USC 5109(a).

 

 I respectfully request the VA to call a clear and unmistakable error on the part of the 01/24/2014 rating decision that awarded 10% for Narcolepsy. The decision maker failed to follow the laws in effect at the time which resulted in a clear and unmistakable error in determining the initial rating percentage of 10%.  I have Cited the specific errors down below

 

38 CFR 4.2-Interpretation of examination reports.

38 CFR 4.6-Evaluation of evidence

MR-21-1, Part III, Subpart iv, Chapter 5, III.iv.5.A.3.e.    Basis for Rejecting Medical Evidence

38 CFR 4.2 states in part “. . . 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.

The rating examiner failed to apply this section of Federal law because they failed to consider the finding listed in my chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.”  (Enclosure Page 1, Paragraph 1 Highlighted).

38 CFR 4.6 states in part “. . . 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.”

The examiner failed in to apply this Because under Federal law 38 CFR §4.124a, condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. Under 38 CFR Condition 8911   Epilepsy, petit mal is rated under the general rating formula for minor seizures. Attached is paperwork from my chronological record of medical care at 5th Medical Group, Minot AFB Dated 11/27/2013 it states “the sleep study did diagnose narcolepsy. Patient falls asleep frequently during the day, ranges from 5-20 times per day.” 38 CFR Condition 8911   Epilepsy, petit mal. States A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (“pure” petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The second document in reference is the Narcolepsy DBQ completed on April 11, 2014 it states “Has Sleep attacks every day. Does not drive” then under symptoms it lists excessive daytime sleepiness, Sleep Attacks, Sleep paralysis, Sleep hallucinations All of

 

these are marked as yes, but immediately following this under Indicate frequency of cataplectic (narcoleptic episodes) (check all that apply):

 

Number of cataplectic (narcoleptic) episodes over past 6 months:

 

[X] 0-1

 

[ ] 2 or more

 

Even though the patient statements, and medical evidence that was provided by the patient shows (narcoleptic) episodes happen daily 5-20 times.

 

 Following this section, the narcolepsy DBQ states

Has the Veteran ever had major seizures (characterized by the

generalized tonic-clonic convulsion with unconsciousness)?

 

[ ] Yes [X] No

 

d. Has the Veteran ever had minor seizures (characterized by a brief

interruption in consciousness or conscious control associated with

staring or rhythmic blinking of the eyes or nodding of the head

("pure" petit mal) or sudden jerking movements of the arms, trunk or head

(myoclonic type) or sudden loss of postural control (akinetic type))?

 

[ ] Yes [X] No

 

Provided Under 38 CFR §4.124a condition 8108 (Narcolepsy) is Rated as epilepsy, petit mal. With the provided evidence “chronological record of Medical care” “Narcolepsy DBQ” that is referenced about both boxes should be marked yes.

 

 

                These errors have manifested a detrimental outcome. If the 5-20 witnessed Narcoleptic attacks, hallucinations, paralysis, extended bout of reported unconsciousness, rhythmic blinking, loss of control of body, and all the reported medical evidence was taken into consideration a rating of 100% would have been put into effect.

 

                The VA's failure to consider and evaluate the evidence that the VA had in their possession manifestly altered the outcome of the decision referred to above.

 

                if the Narcolepsy claim was evaluated after review of all the evidence on the Decision Letter dated 01/24/2014 it would have increased my rating from 60% to 100% at the time of awarding.

 

Respectively submitted, 

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