Filing a CUE based on denying lay evidence

[Bunny448]

Good day,

I am building a case to file for Menieres Disease and I need a vertigo claim approved.

In 2006 I filed for vertigo that began in non combat at Fort Leonard Wood in 2002, I have many documents stating the diagnosis was vertigo.

It got worse in 2003 after two TBI events in Iraq.  After Iraq I sought treatment and was diagnosed with PTSD with panic attacks.

During the 2006 C&P the doctor claims I stated that it feels like the vertigo attacks come while I'm having a panic attack.  I doubt I said this, but whatever.  Also the vertigo started a year before I went to Iraq, so they should not be conflated.

So the VA denied my claim for vertigo saying I stated the vertigo attacks come with the panic attacks, and so should be considered under the mental health rating for PTSD.

I'd like to file a CUE, that the VA took a lay diagnosis (mine, that they were panic attacks) over multiple doctor diagnoses of vertigo.   Can I file a CUE for this?

I'll also stress in my planned  CUE filing that the vertigo began (and was diagnosed by mail doctors) a year before any combat.

Thank you for any input!

 

 

[Dustoff1970]

Although I won a CUE claim in 2003 before the U.S. CAVC veterans court representing myself pro se it was a long hard fought battle but satisfying.

Winning a CUE claim by anyone including veterans lawyers is difficult and some say very rare.

In my case and many others both the VARO and Board of Vet Appeals (BVA) said NO CUE because CUE cannot be based upon how the evidence was evaluated or weighed by the VA raters and/or Board lawyers, judges.  This is common/standard reason given for why most CUE claims are denied by VARO, BVA and court.

Also only medical and other evidence that was on the desk before the raters at the time they made their decision is only allowed in a CUE claim to win. There are rare exceptions but I cannot remember the court case. No new evidence introduced after the VARO final decision can be considered/allowed to win a CUE claim or is considered CUE.

The Fed courts including CAVC ruled a long time ago that a veterans lay statements as to his SYMPTOMS is to be considered as just one of many pieces of evidence for the VARO raters to evaluate in decisions making.  In other word the rater cannot ignore the vet lay statements or buddy statements but in fact the raters do give a low score to these lay statements compared to other negative or positive evidence.

HOWEVER the rules and court decisions has consistently stated a long time ago that veterans are not qualified to make their own medical DIAGNOSIS on their medical physical or mental condition unless the veteran is also a doctor or credited medical specialist in the particular matter.

In my humble opinion from experience and reading hundreds of CUE claims and appeals it would be extremely difficult/impossible for you to succeed in overcoming or overturning the multiple doctors opinions/diagnosis with your lay statements.

You will need a diagnosis of Meniere's Disease  from a qualified MD or medical specialist and then a nexus opinion or statement from said doctor saying your disease is due to your military service and he/she has to give a detailed explanation as to why he or she believes your disease is related to military service.  Must also review any military, VA and/or private doctors medical treatment records. If vertigo is a symptom of Meniere's then this helps.

Based upon their diagnosis and your lay statement and other evidence you might also consider filing for an increase rating for your PTSD. Panic attacks are considered as one of many PTSD symptoms.  I know from experience with 30 plus years PTSD.

Hopefully you can find a qualified and motivated VSO to assist you with the difficult claim you propose.

This comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited March 12, 2022 by Dustoff 11

[Berta]

I have won multiple CUES-others here have won CUEs as well- 

I think your approach to this is in error- but others will help- most her shoul know all about CUE claims by now.

You said:

"It got worse in 2003 after two TBI events in Iraq.  After Iraq I sought treatment and was diagnosed with PTSD with panic attacks."

What is your SC rating for the TBI residuals?

 

[broncovet]

I cant say whether or not you have CUE, as I have not read your file.  However, Vertigo is a symptom of hearing loss, at least according to VA.  Do you have hearing loss and are you SC for it? 

https://www.ecfr.gov/current/title-38/chapter-I/part-4/subpart-B/subject-group-ECFR378242b2776122d/section-4.87

I agree with Berta, you may have a CUE, but you probably have to dig deeper, and review your file more thoroughly and consider 38 CFR 4.6

[Berta]

If you do get a vet rep ask them if you are eligible for the SMC T award -'T' as in Tom.

Others here will explain that.

We need more info from you, maybe you posted it in a different thread topic----

We dont have time to access all on the threads if posters start new topics on the same issue.

If the vet rep never heard of the "t" SMC award, get a different vet rep.

 

 

[Dustoff1970]

Here is the official VA definition of a true CUE (Clear and Unmistakable Error) claim    https://www.ecfr.gov/current/title-38/chapter-I/part-20/subpart-O/section-20.1403

For example if you file a CUE claim from a VA or BVA decision denial that was rendered 20 years ago and if successful you can receive backpay for those 20 years unlike filing a new or reopened claim from that 20 year old decision as the VA will only start your new rating and pay from date of filing the reopened claim for same issue denied 20 years ago.

You can see why true CUE claims are not easy to win as some represents big MONEY to the VA.

It is very common for many folks to confuse any type of  error/s by VA or BVA as CUE error and they often use this term in their media statements or even in their NODs and appeals and lose unless they meet high bar requirements of 38 CFR 20.1403.  The VA and BVA consider CUE claims as a serious assault on their adjudication judgement decisions so I have heard and read for many years from veteran lawyers or their law firms.

They were very quick to deny my CUE claim until I appealed to the CAVC court that agreed the VARO should have considered me and adjudicated me for a TDIU claim that was a due process error and not CUE but I won anyway as VARO did give me TDIU according to court remand instructions with about 5 years backpay.

I have never used the term "CUE error" in my other successful   appeals but instead only the term "error" in my appeals.

Now we can debate how many angels can dance on a pin head.

This comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited March 12, 2022 by Dustoff 11

[pacmanx1]

30 minutes ago, Dustoff 11 said:

For example, if you file a CUE claim from a VA or BVA decision denial that was rendered 20 years ago and if successful you can receive backpay for those 20 years unlike filing a new or reopened claim from that 20-year-old decision as the VA will only start your new rating and pay from date of filing the reopened claim for same issue denied 20 years ago.

Actually, this statement is not true because a veteran can reopen his/her claim based on 38 CFR 3.156 and get the exact same result/benefits and keep the benefit of doubt and filing a CUE claim the veteran loses the benefit of doubt.

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record.

3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500.

 

 

 

Edited March 12, 2022 by pacmanx1