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.

[john999]

I do hope you are successful with your CUE.  I won a CUE about ten years ago.  My CUE was so obvious you could have seen it from Pike's Peak.  When I think of a CUE this is what I think of because if they is even a dash of judgement or thought required your CUE will probably get denied.  With a CUE you don't get "Benefit of Doubt" or Duty to Assist as far as I know.  Before that I filed CUE on a 1973 decision due to fact VA did not consider all the crucial evidence in my original claim.  They simply did not include my private doctors full report in their decision.  In those days the VA did not have to list the evidence they used, but it was obvious to a blind man that they did not read or consider my doctor's report.  Never the less, I lost because I could not prove a negative.  I could not prove that the VA did not consider my doctor's report.  The judges at Court of Vet Appeals knew I was getting a raw deal but they would not use any judgement besides strict abidance to regulations.  So me and my lawyer spent years for nothing. To some extent CUE claims are a fantasy.  Few besides experts like Berta, Alex and others ever win these things because the regulations IMO are anti-vet.  I know some smart vets here have won CUE's but it is a hard road to follow and you get zero help from VA because you are pointing the finger at the VA and saying they F'..ked up.

[Justaskpat]

On 5/10/2021 at 9:49 AM, Berta said:

discharge certificate

what is a discharge certificate?

[Justaskpat]

On 5/11/2021 at 7:27 AM, Berta said:

POA

POA means Power of attorney?

Berta, to answer some of your questions –

No CUEs have been filed on the 2011 Decision. I intend to file for RLS, GERD/IBS and MDD. I should have started with an easier CUE than the MDD. I am pretty sure the RLS and the GERD/IBS CUEs are easily winnable as both are side effects of medication the Veteran had been on for years, and through retirement.

My husband was diagnosed with a serious health issue shortly before his last sign off in 2019 and has had several additional health issues ongoing to current. Since then, he has been unable to contribute to any of the preparation. I have my own trials as well, have a surgery scheduled next Friday that will keep me unable to be on the computer for a couple weeks. No excuses, this is just what has been happening, which is same that happens in most disabled households. Maybe I should have waited until after my recovery to dig into this.

From what I know, Geekysquid provided template help to show proper formatting and method of attack, he did not prepare a CUE that I’m aware of. I believe he wanted to prepare a CUE for MDD because he became angry about something he saw when he read some document my husband messaged to him. It upset him and that is when he said there was a term for what the rater did, that he had substituted his opinion for the doctor’s. I came in on the tail end of that, then Geeky disappear off the scene and that is where things are now. Now I am trying to pick things up where we left off...

I was under the impression the CUE you provided was a template, not the actual CUE to be used for filing. More on this later in this post...

It is confusing trying to find my way around the site. I could not figure out how to find the old posts, so thank you for that link. Now, I need to figure out how to “edit”, so I can upload a couple decisions we have received in 2021. Maybe I could just attach them to this response if I could find the button.

Yes, the 2019 decision did use as evidence a several things that were not available in 2011 decision, ones carrying some weight, I believe, were lay letters from the Veteran and myself. I wrote both letters, and they were quite extensive, but both relied heavily on information I found searching through the SMRs. There were also records from the VA suicide prevention counseling program, but oddly enough, even though they named those records in evidence, they forgot or overlooked the “suicidal ideations” and rated MDD at 50%.

What I would like to do, if you could bear with me, is give you the run down of where we are now, today, so you can see the bigger picture of what’s been going on.

Before I do anything else regarding the MDD/Anxiety CUE for the 2011 decision, I am doing a request for all the Veteran’s mental health records, notes, correspondence etc, to see what the VA actually has and so should have had in 2011. In the 2011 C&P, the Examiner made the statement that the mental health records were kept under separate cover and were unavailable to him, but then he also made specific comments he could have only known if he had seen the records. If I can get my hands on mental health records that the VA had, especially anything pre 1998, it might go a long way toward winning the CUE. The Veteran’s first mental health counseling was a 30 day group counseling program in 1992 for depression and anxiety not long after his abusive alcoholic stepfather died. He would go to work, but instead of working, he would spend the entire day in counseling, every day for 30 days. It was approved by his Commander, but there is no mention of it in his SMRs. But there should be record of it somewhere because too many people had to be involved and sign off to make it happen. I will be preparing that request and submitting it electronically before the end of the week. May take a long time to get the records, but it would be worth the wait.

OK, so to bring you up to current:

The CUEs on the 2019 decision re MDD and GERD were prepared and sent using your template or a combination of templates. They were on the docket, ready to be heard and something told me to take them out and read them. They referred to 2 laws, not just the evaluation of evidence law and from what I could tell, there was no violation of the second law. So we withdrew those CUEs right away because, me not knowing how things worked at that level, I was afraid they would be rejected or ??? because of the second law being included in error. I then prepared them as NODs, or whatever they are calling them these days. The VA lost the NOD submission. So we pulled the first submission back fearing it had been prepared incorrectly, then VA lost the second submission. I prepared a third submission and sent with it a cover letter explaining all the above. The VA received the third submission the end of February 2021. We received verification by phone yesterday that the decision is done, dated 4/30/21 and is in the mail. Whether it be yea, nay or ??? at least we will have a decision on that NOD submission.

In the meantime, in my attempt to get the Veteran recognized for TBI, TBI was recognized at 10% and MDD ended up getting bumped up to 70%, without the suicidal ideations even being considered, and they took it upon themselves (the Examiner did) to go the extra mile ending up with a rating of 30% for IBS and 30% for migraines without us even asking and Examiner also got Veteran approved for SMC for use of creative organ. We had no idea the Examiner was doing this. He was unbelievably awesome. He was with VES, Veteran's Evaluation Services, their motto is Veterans for Veterans and it appears they mean what they say. Now VA has connected absolutely everything possible to the TBI. But they rate the MDD because it is the highest % and to avoid pyramiding.

So now, the MDD is taken care of either way and all that is left is to get the GERD percentage increased to 30% on that 2019 NOD. If the 4/30/21 decision speaks to GERD, that completes what we have been trying to accomplish with the NOD of the 2019 decision. Then all that is left for current is RLS/PMD, and there is enough proof in the SMRs to prove SC for that. Then all that will be left to do are the 2011 CUEs.

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 would make things too confusing, so I am going to stop here.

Also, I just realized I can't figure out how to attach the 2 2021 decisions!!!  I'll keep searching this site and when I figure it out, I will post them here.

MARCH 1 2021 VA RATING DECISION.pdf APRIL 29 2021 VA RATING DECISION.pdf

Edited May 13, 2021 by Justaskpat
added 3/1/21 and 4/29/21 decisions, corrected spelling of the word "would"

[Berta]

Since your husband's POA ( Power of Attorney), N.C. Department of Military and Veterans, 

are on these recent awards dated March 1, 2021 and April 29, 2021, I suggest that you contact them about any possible CUE claims.

They will need a copy of his C file ,if they do not have that already.And copies of all available MH records which you are seeking to get.

If they do not have a copy of his C file ,your husband can request it from the VA. It will take time to get it. If they see a CUE in the 2011 decision, they can prepare it.

 

 

 

[Justaskpat]

31 minutes ago, Berta said:

POA ( Power of Attorney), N.C. Department of Military and Veterans

I responded without signing in (forgot), then response diappeared after sign in, I apologize if you get duplicate responses.

Neither of us know how he got a POA. He didn't ask for one and said he was not told they were appointing one. The only person from NC VA who did anything for us was the rep who faxed the info used to arrive at the 2019 decision. We prepared it and all she did was fax it.

I prepared the info for the first 2021 decision. The VA did the second 2021 decision on their own because they said the psy Examiner from the first 2021 decision could not differentiate between MDD symptoms and TBI symptoms.

I prepared the NODs for the 2019 decision and we sent that in ourselves.

Is this a good thing or a bad thing?  We are confused as to how this happened and what we should do.

[Justaskpat]

1 hour ago, Berta said:

POA

The VA rep who faxed in our package that resulted in the 2019 decision had my husband sign a form that changed his rep from the DAV to NC VA. The form says they can act on our behalf or assist in preparation. It didn't say anything about the Rep having to take part in anything or everything, it was like they're there if we need them. No one from NC VA has had any part of anything that has taken place, other than the faxing of the 2019. We(I)  have prepared everything on our own and submitted it ourselves.