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Newbie request to review CUE write up

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Texas-NativeATX

Question

I am brand new to this group and been researching CUE and found this group today. An old post suggested that anyone considering a CUE post their write up here to receive critiques and suggestions from experience members of the forum.  So here goes:

I trust you will be brutally honest, it is my understanding that this is a one shot deal and if I do a poor job I cannot try again.

 

To: Department of Veterans Affairs

 

Subj: Motion for Review for Clear and Unmistakable Error ICO <my name>

 

I <my name>  the claimant in VA File Number <my file number> Rating Decision dated 12 August 2014, move, pro se, that the VA made a Clear and Unmistakable Error in the denial of service connection for mental health condition to include irritability, avoidance, and loss of interest. The examiner made undebatable errors in fact and the adjudicator made an unmistakable error in law resulting in an outcome that would have been different if the errors had not occurred. I am requesting a revision of decision in accordance with CFR 38 3.105, to grant service connection for PTSD with an evaluation of 70% effective February, 1, 2014.

 

When my claim was filed in February 2014 VA Form 21-0960P-4 dated Dec 2010 required a qualified PTSD examiner to answer a series of questions during an examination. On 15 Nov 2013, Psychiatrist Timothy K Tse, hereafter referred to as ‘the examiner’, conducted a C&P PTSD Initial Examination and made several Clear and Unmistakable Errors that “manifestly changed the outcome” of my disability claim.  Based on entries made by ‘the examiner’ these CUEs stemmed from ‘the examiner’s’ lack of access my VBMS and my C-File and due to ‘the examiner’s’ poor correlation of information and haphazard documenting of information that he gathered during the examination.

 

The Clear and Unmistakable Errors in fact made during my 15 Nov 2013 examination include:

 

1.     The examiner’s notes for VA Form 21-0960P-4  Section II Clinical Findings Paragraph 2 History sub-section a) Family History neglected to include the marital problems ‘the examiner’ noted later in the Section II Paragraph 8 Remarks. These details should have been listed as symptoms and contributed to an evaluation % greater than 0%.

2.     The examiner’s notes for VA Form 21-0960P-4  Section II Clinical Findings Paragraph 2 History sub-section b) Relevant Occupational History neglected to include 20 months spent in combat zones in support of OIF that was alluded to later in the form but not identified as a Stressor. These details would have justified more detailed reading of Service Records or asking interview questions to confirm combat experience and exposure to Stressors.

3.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Findings Paragraph 3 Stressors as “Not Applicable”, despite my C-File containing 2 Post Deployment questionnaires documenting Stressors ‘seeing dead bodies’, my Military Service Record containing a 2007 Navy Commendation Medal summary, documentation of exposure to multiple in-direct fire IDF attacks and the examiner’s written statement about combat deployment that clearly met the criteria listed on the form “For VA purposes, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror ” By answering Not Applicable to Paragraph 3 Stressors, the evaluation form led ‘the examiner’ to not ask probative questions for the subsequent diagnostic criteria section and occupational and social impact section of the form.

4.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria A: “No exposure to a traumatic event”, despite VA Form 21-0960P-4 definition Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others  as a symptom and the C-File containing evidence of multiple occurrences of such events, including Post Deployment Questionaries of encountering hostile fire and seeing dead and injured coalition forces. My service record also contained a 2007 Navy Commendation Medal summary for my actions during an attack an Al Qaim forward operating base, Iraq.

5.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria B: “The traumatic event is not persistently reexperienced”, despite f VA Form 21-0960P-4  listing Recurrent distressing dreams of the event as a symptom and the C-File containing evidence documenting such symptoms that came out of a Sleep Apnea DBQ diagnosis statement stating “sleep problems were most likely insomnia and psych related.” 

6.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a” Criteria C:  “No persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness” despite VA Form 21-0960P-4 definition Markedly diminished interest or participation in significant activities, Feeling of detachment or estrangement from others, Restricted range of affect (e.g., unable to have loving feelings), and Efforts to avoid thoughts, feelings or conversations associated with the trauma as symptoms and the C-file containing evidence of these symptoms to include documentation of marital problems with counseling and ‘the examiner’’s notes stating a “decrease in mood.”  

7.     The examiner indicated in VA Form 21-0960P-4  Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria D:  “No response provided” despite VA Form 21-0960P-4 listing Difficulty falling or staying asleep, and Irritability or outbursts of anger as symptoms and the C-File containing evidence of problems staying asleep and an alcohol related incident that occurred after return from combat deployment.

8.      Clear and Unmistakable errors in the Diagnostic Criteria section resulted in erroneous or skipped assessments in VA Form 21-0960P-4  Section IV Stressor, VA Form 21-0960P-4  Section V Symptoms, and Section VI Occupational and Social Impairment.

9.     The examiners closing remarks included the following sentences “The veteran's two deployments in 04 and 07 did not expose him to traumatic events or he has any PTSD symptoms. But he did have some decrease in motivation and problems with relationship with his wife. He denied any vegetative symptoms of depression. He denied any anxiety issues.” Despite ‘the examiner’ having answered “Not Applicable” to VA Form 21-0960P-4  Section II Clinical Finding Paragraph 5 Symptoms that asked about Disturbances of motivation and mood, Difficulty in establishing and maintaining effective work and social relationships, and Inability to establish and maintain effective relationships.

 

 

Year 2001 – Title 38 U.S. Code § 1154.b directs “In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.” 

 

The VA Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes was amended via interim final rule on 4 August 2014 and was in force at time of the 12 August 2014 rating decision. The interim final rule directed the following: 

“The new diagnostic criteria for PTSD no longer include the subjective reaction to the traumatic event (Criterion A2), such as experiencing fear, helplessness, or horror, but the revised stressor criterion (Criterion A) includes a more explicit definition for stressors as exposure to actual or threatened death, serious injury or sexual violation.”

 

This change to the Schedule for rating made it imperative that ‘the examiner’ be aware of exposures listed in C-File and Service Record. The examiner clearly did not conduct my examine in accordance with VA policies that were in force at the time of the rating decision, it was incumbent on the Ratings Board to identify this discrepancy and adjudicate my claim accordingly as required by O.G.C.Precedent 9-94 for claims “still open.” 

 

The Clear and Unmistakable Errors in law made by adjudicators include:

 

1.     The adjudicator failed to uphold their responsibility to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture note as required in CFR 38 4.2. The examination notes indicated that ‘the examiner’ did not review my records in VBMS nor any other records that were available to the VA at the time of the examination, yet the adjudicator failed to interpret the examination report along side the C-File and not the discrepancies.

2.     The Rating Board failed to uphold their responsibility to conscientiously study every element in any way affecting the probative value to be assigned to the evidence are required by CFR 38 4.6. The Ratings Board had access to all assembled facts yet did not identify the record contained 20 months of combat deployments, 2 Post Deployment Questionaries, and a Personal Award for actions in Iraq while ‘the examiner’ found no stressors.

3.     The Rating Board failed to uphold their responsibility to apply reasonable doubt after careful consideration of all procurable and assembled data as required by CFR 38.102 when they affirmed the examiner’s diagnosis despite the C-File containing significant information about combat deployments and changes in behavior after the combat deployment.

 

CFR 38 3.102 Addresses Reasonable Doubt and states ‘When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.’

 

CFR 38 § 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

CFR 38 § 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

Closing argument

 

The initial Clear and Unmistakable Error occurred when ‘the examiner’ failed to comply with CFR 38.102 by not exercising careful consideration of all procurable documents and when ‘the examiner’ failed to list facts discovered during the examination in all the appropriate sections of the DBQ. The fact that VBMS was down on the day of the appointment did not mean the information in the C-File was not procurable. The examiner not identifying the C-File documented stressors lead to a cascade of errors that ultimately resulted in an inadequate medical diagnosis that should be assigned little probative value. The examiner’s failure to review the available facts prior to making a diagnosis should have led the Rating Specialist to comply with CFR 38 4.2 and return the report as inadequate for evaluation purposes due to failure to ‘interpret reports of examination in light of the whole recorded history.’ Additionally the Adjudicator should have complied with CFR 38 4.6 to ensure ‘every element in any way affecting the probative value to be assigned to evidence in each individual claim .. be thoroughly and consistently studied by each member of the rating board.’ 

 

The following elements must be met in order to justify reversal of the final decision:

 

            Element #1 – The Claim decision must be final. 

Element #2 – The correct facts were not before the adjudicator at the time of decision. 

Element #3 – The error is undebatable.

Element #4 – The outcome would have been different if not for the error.   

 

This document provides information that fully meets the criteria established in 38 U.S.C. § 7111(a) and now having been called to your attention compels a conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. The evidentiary record available to the VA at the time of examination clearly indicated that a stressor occurred during combat deployment and that symptoms consistent with PTSD were present at the time of examination, but the adjudicator did not have all the facts because of the Clear Errors made in the PTSD Examination. The record at the time of examination contained several symptoms that justified a service connection for Mental Health Condition which is a manifestly different outcome. 

 

I have clearly shown that the correct facts were not before the adjudicator at the time of the decision, the errors made are undebatable departures from VA regulations and applicable law, and the outcome would have been different if not for the errors. Therefore, I submit that the appropriate corrective action is to reverse the 2014 denial decision for Mental Health Condition and set the Effective Date for 70% PTSD to February 1, 2014. 

 

 

Respectfully Submitted,

<my name>

 

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  • Moderator

I concur that "error(s) made by c and p examiners" are not CUE.  Errors that are made by examiners can be fixed, but do fix them these ways instead: (if applicable to you)

1.  Correct errors in your MEDICAL records with 38 CFR stated below.

2.  Challenge the competency of the examiner, as stated below. 

3.  Do a new exam, with an independent medical exam, or IMO, to refute a negative exam using 38 CFR 3.156

   1.  

§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

[47 FR 16324, Apr. 16, 1982]

 

2.  Challenge the competency of an examiner:  https://cck-law.com/blog/how-to-challenge-va-cp-exam/

     My advice:  Exhaust all the avenues above, before considering filing CUE.  

Better advice yet:  See Berta's posts on CUE.  

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  • Content Curator/HadIt.com Elder

After the AMA process changes went into effect in early 2019, I sent mine, but the VA staff seemed dumbfounded. It sat idle for a month and my VSO found out VA staff was trying to determine if it needed to be submitted on a specific form. I just said screw it and sent it in as a HLR, but did then a favor by quoting the M21-1 article which stated it did not have a required form. I was later told they were working to try to get a proper form and process built, but I honestly would have to search again to confirm no form was needed. Berta said she has had success by simply sending them a letter, but she's not posting on Hadit.

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