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.

[Justaskpat]

8 hours ago, Berta said:

There were multiple DBQs

When I post this time, I am going to post on one disability only, so it will be less confusing.

There are several things I want to CUE, but taking it slow, getting through one at a time.

Hopefully will have meaningful info together and posted by end of day on Wednesday.

[john999]

Did you file an appeal on the 2011 decision?  My CUE was denied many years later because I did not file an appeal back in 1973.

[Justaskpat]

6 minutes ago, john999 said:

Did you file an appeal on the 2011 decision? 

No. Back then, we were hesitant and told, not to "rock the boat", so no appeal was filed back then.

Now, years later, after having gone through every page of the SMRs a hundred times each, read every word of every decision, C&P exam, radiology reports, I (the spouse) can see where possibly the ball was dropped, leaving the door open for possible CUEs on several things.

I feel there is nothing to lose if I try. I just want to do it right and tie it up with a bow because from what I understand, CUEs are a one shot deal.

My husband deserves every penny of disability money he may be entitled to and if I can help get it for him, I am going to do whatever it takes.

[Berta]

On page 2 of this thread I gave you the best advice I could think of, based on how I won many personal CUEs with the VA.

I do not see this as a "rater substituting their opinion for that of  the C & P examiner."

I have read the C & P exam you posted last year. I hope others who opine here have read all of the posts carefully.

If you find what I mentioned in my last post here, you would have a valid CUE.

If the VA had in their possession in 2011, whatever evidence they finally awarded on in 2019, and did not consider it in 2011 that is a violation of 38 CFR 4.6.

It would be considered a "legal error"

 

 

 

 

 

 

 

Edited May 11, 2021 by Berta

[Berta]

Did you ever filed the CUE claim dated 9/29/2009?

I just found it in one of your multiple posts.

I believe it was prepared by GeekySquid. It is well done but when the 2019 Award letter was mentioned in it , it did not mention any previous probative evidence that the award was based on,that was in VA's possession at time of the 2911 decision.

Both I and apparently Geeky Squid have helped you with CUE claims we prepared for you in the past.

I suggest you use them as templates and focus in on what I mentioned above....

...did the VA have probative evidence prior to the 2019 decision , comparable to what they used for the award, that they ignored to your husband's detriment? in 2011.

BTW CUE is NOT a One Shot deal-the BVA will often dismiss a CUE, denied by a RO,  without prejudice- that means if the veteran refiles it properly , the CUE could succeed.

Most CUEs denied at the BVA reveal the claimant did not study CUE regulations enough to know what they were doing. CUEs rest solely on Legal Errors.

I have nothing else to add. Have you asked your  prior POA for help with this?

 

 

 

 

[Mr cue]

Ok here is an example of a rater using his or her opinion.

First he State a medical doctor must be miskate with no evidence.

Next he call smc l a catch all benfits

Next he use my code to denied loss of use when it is to be base on reminding function of the body part.