Disputing a unfavorable c&p exam from 2014

[Dot09]

Alright I currently have a cue from 2014 when I was reviewed for an increase of my mental health. My cue is currently at the BVA in which I selected the evidence lane. My question is being that is cue and that the c&p exam was done in 2014 unfavorably can I get a psychiatrist imo to dispute the examiners report or discredit him because it contained legal references and coaching a dr to fill out a dbq multiple times. The report was heavy flawed with his interpretation of law and judged my character as an unlawful deviant and possible malinger. He even called my then ex psychiatrist to get an opinion which at that point was bad blood and can only assume his recommendations were negative. He posted the comments at least 7 times in the report taking the attention off of my symptoms which would have granted a 70 percent. What are your thoughts and can new evidence be added to a cue only to discredit an exam but not add facts? I understand that a cue is unique and can only take the fact at the time but all I’m trying to do is discredit his unfavorable exam. Thank you for reading this.

Edited November 3, 2023 by Dot09

[El Train]

Not sure you can dispute a C&P exam from that long ago. You have to file a NOD within the year with new evidence.   I got a shoddy C&P exam once and I filed a complaint with my VARO after I got my hands on the exam (I pissed the examiner off and she went for a lil retribution).  This was within the one year year (Notice of Disagreement).  I had too much positive evidence in my favor for this bad exam to overcome. Ultimately, this complaint resulted in a few more C&P exams that went in my favor.

I'm not familiar enough with CUE's to say you have a case or not.  That would be an attorney question.

[Vync]

CUE cannot rely on any new evidence. 

CUE cannot be asserted as benefit of the doubt or a difference in opinion.

You must prove that the VA made an error by using evidence, laws, regulations, and policies (M21-1) which were in effect at the time the decision was made.

 

For increases (not SC), the examiner is supposed to review the records from 12 months prior to when you filed an increase to verify you meet the rating criteria for an increased %. 

Here's the current criteria which we will use for this example:

https://www.ecfr.gov/current/title-38/chapter-I/part-4/subpart-B/subject-group-ECFRfa64377db09ae97/section-4.130

Quote

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.70

Let's say that you have neglect of personal appearance and hygiene, yes, that would qualify you for 70%. From what I have read (don't quote me because I am not an expert), you don't have to meet all or multiple criteria. Look at where the semicolons ";" are placed and you will find 8 possible criteria for 70%:

Quote

1. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation;

2. obsessional rituals which interfere with routine activities;

3. speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively;

4. impaired impulse control (such as unprovoked irritability with periods of violence);

5. spatial disorientation;

6. neglect of personal appearance and hygiene;

7. difficulty in adapting to stressful circumstances (including work or a worklike setting);

8. inability to establish and maintain effective relationships.

Look back in your records for the according date range prior to filing for an increase. If you see that criteria in your records, you should qualify for 70%. Having it noted repeatedly is helpful because to does show a pattern of repetition. That is literally documented in black and white. Reasonable minds should be able to conclude if they can see it in the records or not.

Then you have an examiner that sees you once and thinks you are faking it (malingering). Keep in mind that you might have had eposidic (occasional) improvement. However, they can't erase your documented history. Also, keep in mind that some of the criteria is a bit subjective from the examiners side, like when it mentions "such as". That would give them the ability to interpret whatever that might be. Also, in some cases an examiner may have been requested to perform a current assessment (C&P) of your situation at that specific time. However, they must still consider the impact of what was documented. Depending on the amount of time between when you filed an increase and when the exam occurred, you might win a staged rating which could be a retroactive increase to 70%, but then a 50% from the time the exam occurred going forward.

 

@El Train CUE claims have the magic of not being restricted to any date. You literally can file a CUE at any time. I won one a couple of years ago against a claim that was completed in 2000. I filed in 1995 and had a C&P in 1997 after the BVA forced the VARO to do it. During that exam, the examiner failed to follow the rating criteria and regs regarding an aggravated disability. The examiner simply stated his opinion and the VARO reduced my initial rating by 10%. I looked up the laws/regs/policies in effect at the time and explained that what the examiner said was "not in terms" of what the rating schedule said back in 2000. They granted CUE and increased my initial rating. However, Dot09 is dealing with the mental health criteria which is a bit different because it can allow the examiner to exert their "opinion". Yet for increases they must look back 12 months prior to requesting the increase. If Dot09's records show they met the increased criteria, then they hopefully should have been granted it appropriately. In my opinion, it sounds like Dot09 may have drawn the short straw and received an anti-vet examiner...

 

 

[Dot09]

Vync 

Just to squash this bug. Let’s say I get an imo today and only hand the person my c&p exam from 2014. Would that not constitute as new material evidence if she only evaluated the 2014 exam? All I’m asking is for her to reorganize evaluate his report. It clearly list all my symptoms in the 70 percent range and the only thing he didn’t check was occupational and social impairment in most areas like school, work, and family. Granted I’m sure I already know the answer but I just want to put this at rest. Granted my attorney said it wasn’t possible to submit anything new with a cue. This rater was completely bias against me and it looks like I got the short straw. The reason I did not appeal it was that I was happy that I was tdiu p&t awarded. Therefore at that time I did not know about SMC s or any other benefits because they weren’t explained to me. Thank you for responding.

[Vync]

@Dot09 I think @broncovet knows way more about N&M evidence than I do so I will let him give you his opinion. My opinion is that it might net you a 70% rating, but not necessarily fix the effective date unless it proved your met the 70% criteria. 

However, once a claim has become final, that's when CUE would apply. I agree with your attorney that you cannot submit anything new. However, the VA must consider any evidence of record at the time the decision was made, even if the evidence was not before the person making the decision. The term "of record" means in the VA's possession. Of course, a new IMO from a few months ago would be great going forward as long as it was an adequate IMO, but would likely not change the decision back in 2014.

Glad to help with my opinion.

[Dot09]

Vync 

My attorney believes I have a good shot at a cue because my imo and dbq was submitted and logged by the Va. However the rater never received those documents when he made a decision. That is the crux of my claim. The only hurdle that she could foresee is the unfavorable exam that was conducted. I am looking at a new eed date of 2014 for my bipolar and SMC s. I just wanted to exhaust all my options. Yes bronco is very good at what he offers. I wish Berta was around to give her opinion. I also thank you for yours.

[broncovet]

I would advise you to trust the attorney you hired and wait for the outcome.

Cue is a "collateral" attack on a previous decision.  Not all errors are CUE. 

It takes a specific kind of error to meet the Cue "standard of review".  The error must be:

1.  Undebatable.

2.  Outcome determinative.

3.  Based on the facts available when decision is made.  

4.  A duty to assist error is not cue.  

     It sounds like you have an issue with the examiner.  VA examiners get a "presumptive"...that they are both competent, and do their job.  This presumptive can be rebutted with evidence.  It takes medical evidence to rebut medical evidence.  Medical evidence can not be rebutted with lay evidence.  

Your attorney has read your file, we have not.  He is in a much better position to evaluate the chances of your cue suceeding.  For that reason, I think you should take the attorney's advice and stay out of his way.  

In each decision there can be 0, 1, or a dozen CUE errors.  

Your attorney sounds like he found one or more and is fully persuing them.  

However, based on what I know about CUE, the Cue theory you presented does not sound like it meets the cue criteria to me.  The VA decision makers based their decision on what you allege is a faulty c and p exam.  

There is a specific method of attacking a defective c and p exam, and Cue'ing the doctor is not one of them.  Instead, based totally on the information you provided in the post, (I am sure your attorney has thoroughly reviewed your file and probably identified one or more cue errors.  

 

There are at least 2 ways of disputing a defective c and p exam:

1.  Challenge the competency of the examiner.  Get the "c and P examiner name", and try to find out if his medical training qualifies him as an "expert in the field".  If the examiner had little or no training and/or experience in the applicable medical specialty, then he may not be competent to render a medical professional opinion.  

2.  If the doctor or medical professional has expert experience and knowledge in the applicable field, then you can refute the doctors opinion with another doctors conflicting opinion "especially when" the IMO doctor does a more thorough exam, such as ordering xrays, medical tests, etc.  

Had you not already hired an attorney, I would probably not suggest CUE, but file a resubmitted claim due to new and relevant evidence, 38 CFR 3.156.  But, your attorney knows more about the law, and more about your file than I do, so I cant recommend you take my advice over that of a qualified Veterans law attorney.