Rater substituted his own opinion for the C&P Examiner's opinion

[Justaskpat]

I have searched everywhere I can think of for an answer to this question.

I'm posting it under CUE because when I find the answer, it will assist me in writing my CUE.

Question: What is it called, and/or what is the violation when a rater substitutes his own opinion in place of the doctor's written opinion.

I was denied service connection for MDD/Anxiety, even though the C&P Examining Psych doc said in his opinion MDD was secondary to military service due to long deployments.  The rater ignored the doctor's opinion, ignored I had been medicated for years, as shown in my SMRs, and was still medicated at the C&P. The rater cherry picked little things the doctor said to substantiate his own opinion/denial, quoted the diagnosis, then completely ignored the doctor's final statement/opinion.

Geekysquid told me long ago there was a term for what the rater did but before I got the answer, Geekyquid disappeared off Hadit and I've never been able to find out the answer anywhere else.

Thanks for your time.

PS This is Veteran's spouse in place of Veteran. I'm writing as the Veteran to make it less confusing. I'm trying to help get his CUEs together as he is unable to do so.

[Berta]

"I really want to talk about discrepancies in the 2011 C&P Examiner’s report for MDD/Anxiety, to get your input, but including it in the post wood make things too confusing, so I am going to stop here."

I have already given my input here on the 2011 decision.

You seem to be dealing with your own medical issues and I hope the surgery goes well for you.

The POA on the recent awards can be contacted here:

https://www.milvets.nc.gov/contact-us

https://www.milvets.nc.gov/ncdmva-coronavirus-covid-19-operations-procedures-nc-dhhs-information

The awards you posted above reveal there is much more to this situation- and the NC Department of Military and Veterans would have far more info then we know of here.

If they see a CUE in the 2011 decision they can prepare and file it for you.

Or maybe someone else here will go over all of the downloads and see something I missed and reply to you.

 

 

 

 

 

 

 

 

[Justaskpat]

7 hours ago, Berta said:

and the NC Department of Military and Veterans would have far more info then we know of here.

If they see a CUE in the 2011 decision they can prepare and file it for you.

I understand and thank you for your advice and input and also for the well wishes re my upcoming surgery. It's my nose, so I am hoping the doc gets things right! ha

As for the NC VA helping - they are the ones that once my husband was found 100%, but the %'s were incorrect for MDD and GERD, they said to leave it alone, not to rock the boat. They are very timid when it comes to submitting any type of question or correction requests to the VA. They also have been unhelpful at obtaining records, as if they don't know where to look. (I found the other online myself a couple days ago, the contact information for obtaining documents.) That is why I went ahead and prepared the two submissions I prepared, the one for 2019 NODs and the 2021 for TBI. Wanted to tell you how that office NC VA office operates. As for them being POA - I'm so glad you brought that to my attention, because I had no idea.

I will prepare the CUEs for the 2011 decision for RLS/PMD and GERD/IBS and if they succeed, I will post the CUEs on Hadit. Both RLS and GERD/IBS are side effects of medication military prescribed my husband for years, through retirement. Hopefully the CUEs will be successful.

Thank you for telling me a CUE is not a "one shot deal". I did not realize that. I thought once a CUE was submitted, if it was denied, that was it. So thanks for that, I really appreciate it and it gives me hope.

As for the CUE for MDD/Anxiety, I will wait until we receive mental health counseling documentation and go from there. After receiving that, (I am hoping they have it and we receive at least some paperwork), I will prepare a CUE and if successful, will post it on Hadit.

Thank you for all the information you've given my husband in the past and to me recently. I will search through it all for guidance in the future.

Edited May 13, 2021 by Justaskpat
corrected the year 2011 to 2019

[Justaskpat]

2 minutes ago, Justaskpat said:

if it was denied

without prejudice

[Berta]

You did very well in helping your husband get those awards, and we have all learned that POAs often do very little to help with a claim.

If many of us were told not to rock the boat, we would have never succeeded in our claims.

CUE is a very specialized claim. If the RO denies a CUE, it can be appealed to the Board of Veterans Appeals.

The BVA will deny it,and grant it, or dismiss it without prejudice.

This claim is an example of a dismissed claim:

"The Veteran has listed at least two separate contentions regarding CUE in the April 16, 2010, rating decision and has failed to specifically identify which records form the underlying basis for the contentions. The Board has a duty to read pro se filings liberally. Andrews, 421 F.3d at 1283-84. However, while the Veteran is not represented by counsel, she is represented by an accredited VA claims agent. The Board has still attempted to read the Veteran’s CUE contentions as liberally as possible. However, the Board has no choice but to dismiss the Veteran’s motion for CUE for failure to be pled with specificity. 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 that a CUE motion be pled with specificity. Any motion which fails to comply with these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404 (b); Disabled American Veterans, 234 F.3d at 698 99. Therefore, the Veteran’s motion for CUE is dismissed. The Veteran and her representative are advised that each new theory of CUE (even if all theories pertain to the same claim) is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the RO in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Board also reiterates that a CUE claim must be pled with specificity, including a clear statement as to which decision contains CUE. For the foregoing reasons, the Veteran’s CUE claim is dismissed without prejudice. The Veteran is free to submit a properly pled motion of CUE at any point in the future."

The BVA remanded the rest of her clam issues.

https://www.va.gov/vetapp20/files7/20046367.txt

This is a typical denied CUE:

"Once a rating decision becomes final, a claimant may attempt to overcome its finality be either (1) requesting a revision of the decision based on clear and unmistakable evidence (CUE) or (2) by filing a claim to reopen based upon new and material evidence. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).: He was successful on the re open but not on the CUE claim.

 

https://www.va.gov/vetapp21/files3/a21006651.txt

The veteran subsequently succeeded in getting SC or his disability, but his CUE for a better entitlement date failed.

We have CUE winners in our CUE forum.

Most of what I know about CUE is from studying BVA decisions for many years. The rest that I now came from buying the annual VBM by NVLSP since 1991.

The key error many make in CUE claims is that they are not specific about the legal error.

And a successful re opened claim does not mean the initial denial was wrong.But sometimes it IS wrong.

If you go to https://www.bva.va.gov/ and then go to their decisions link you can read how the BVA addresses CUE issues.

There is more to this than I thought, with the recent awards you posted.

But VSOs and vet reps are well paid to help veterans, even with CUE issues. I think it is highly inappropriate for any VSO or vet rep to tell a veteran not to rock the boat.

The more you learn from the BVA and from the VBM if you purchase it, about CUE ,then you will have a better way of tackling a CUE, if one does exist in any VA decision your husband got.

You can always find a better VSO or vet rep too. I would even suggest going back to the DAV because it seems they handled the initial 2011 claim.

 

 

 

 

 

[Justaskpat]

31 minutes ago, Berta said:

You did very well in helping your husband get those awards

Thank you so much, that really means a lot!

and thanks for the examples, links, and advice. Yes, we feel the same way about the NC VA, pretty lame. We couldn't believe it. The Rep insinuated the 100% could be decreased if we "said the wrong thing" or basically if we pissed off the VA.  As for going back to the DAV, that's not an option. The assistance they provided to my husband prior to retirement is what got us into this boat to begin with. They left so many things out that should have been sc and rated, especially the TBI.  He had 2 really bad car accidents and 3-4 really hard knocks to the head on board ship, all documented in his smrs, but DAV ignored it. I would say they missed it, but there were too many instances for them to simply miss it. Maybe the guy helping him was in too much of a hurry.

It's so great to know I can refile a CUE if is dismissed for lack of clarity. I will read up on the links you provided.

I am going to prepare the GERD/IBS CUE very carefully and go over it multiple times until I am convinced I have covered all the requirements.  I will post about it when complete.

My dream is to get my husband's percentage up to 100% at 2011, but that isn't going to happen without the MDD/Anxiety CUE succeeding. He was 80% at retirement, I think I can get him to 90% without MDD. Just have to wait and see what happens. The man deserves it and I am going to work like heck to get it for him.

 

 

 

[Berta]

Only the BVA can dismiss a CUE without prejudice to refiling it.

I hope I made that point clear. If it is denied at the RO level it can be appealed and get to the BVA.

The mistakes claimants make in CUEs is evidence in those BVA decisions.

The legal errors the VA makes have to be prime facie errors- meaning so obvious that anyone could see the error- if they know VA case law. and the regulations at time of the alleged CUE.

As Fat mentioned if there is no manifested outcome ( meaning the rating would have to be more than '"0", if it was a diagnostic code error  or any other legal error) there would be no CUE .

That is why whoever wrote the other CUE template in the other  thread ,added the error was detrimental to them. 

I wont be here much in the next few months. Others will help with the other potential CUEs if I am not here.

I appreciate the work you are doing for your husband and I am continuing my VA issues, even though my husband is dead, so that he and I can rest in peace.

Edited May 13, 2021 by Berta