Another CUE

[SPO]

Thinking about attempting a 2nd cue with the VA. The VA denied me for lack of clinical diagnosis, but they had a copy of a DBQ with my doctor providing it.  I attached a copy of the decision and the dbq.  let me know what you all think.  I hope Berta will be willing the chime in on this.  

The problem I am now noticing after re-reading the decision is that the va said they found their C&P doctors opinion more convincing than my doctor's.  Does that override the diagnosis altogether.   Starting to get frustrated over this thing.

Here is the statement I am considering submitting.

"After a review of the decision I received dated 05/13/2019, it appears that the Department of Veterans’ Affairs committed a clear and unmistakable error Under the auspices of 38 USC 5109A in the processing of this decision.  The Department of Veterans’ Affairs failed to comply with Title 38 CFR §4.6 (Evaluation of Evidence).   The VA denied service connection to the claimed conditions due to a lack of clinical diagnosis.  However, the VA identified a Disability Questionnaire (VA form 21-0960M-3) on the list of evidence in the decision.  In the aforementioned Disability questionnaire a licensed physician provided the diagnosis of all the claimed conditions as and further identified the diagnosis by ICD code.  This error effected the rating decision for all associated conditions, resulting in denials that should have been granted

CUE 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 mind could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. pp. 40, 43 (1993)."

 

 

Derm DQB 2_Redacted.pdf decision.pdf

Edited September 3, 2019 by SPO

[vetquest]

The thing that kills your claim is that the doctor doing your DBQ states no records were reviewed.  The DBQ/IMO doctor must read your service and VA and civilian medical records.  This is one of the reasons that IMO's can cost so much.  One doctor told me he charges $300 and hour to read service and medical records.  The second thing that hurts you is no complaints of your disability in your STR's.  I was once service connected for a secondary that I had no in service complaints of but the doctor noted that my main disability could have cause my secondary and referred to current medical literature.  Remember to win your claim you need in service documentation, current chronic disability, and a nexus that ties the first to the second. 

 

[Berta]

I agree with Vetquest- have you attached the C & P exam here anywhere?

Then again even if the exam was flawed , the IMO ( preferably IME doc) needs to follow the IMO/IME criteria here at hadit. This might well take an inperson exam by a doctor whose expertise outweighs the VA examiner.

 

Edited September 9, 2019 by Berta

[SPO]

I have not received my c-file yet so I don’t know wha the exam said.  I had to FOIA to get me record.  The doc writing the IMO has been the one I have been seeing for the last 4-5 years