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

[Dot09]

Bronco

Thats right I don’t think I can do anything about the c&p examiners report and yea I do have a problem with it as he didn’t reflect my character but that’s not the issue. The way my attorney is filing cue is because the ro office failed to give my imo and dbq to the rater. I submitted it and it was logged. I mean what the ro did was take the first three pages that was on my shoulders and failed to submit page 7 which contained the mental health portion and didn’t submit my dbq. So I know for sure they got it because it was dissected by the ro and only given half the report. My attorney looked it up through the data base and also noticed that all my submissions of evidence are logged incorrectly being as it was before the decision was ever made. Those were facts that if they were in front of the rater it would have changed the entire outcome.

P.S. if I submit evidence to the ro and the regional office deliberately withhold evidence from the raters that would warrant a rating because facts would be known. I mean if I send something in and it gets logged should I expect that they’ll review it. The same goes if I file a claim should that be accounted for and if lost would that be a cue if I had proof that I submitted it. It wasn’t on their evidence log in the soc. I take full credit in pointing this out to my attorney. I just don’t know how you don’t see this as cue. Because it was a deliberate act to withhold evidence from the raters which from my understanding is a cue.

Edited November 4, 2023 by Dot09

[Dustoff1970]

I read from knowledgeable others that a bad C&P exam cannot be used as an argument/basis for CUE.   As to the VA raters not considering the evidence that was available and/or before them then how do you prove that they did not consider all the evidence before them as most of their decision letters are vague, short and brief on details including reasons and basis.

In the bad old days the VA decision letters never even listed the evidence they supposedly considered in arriving at their decision.

In my 2000 CUE claim and appeal to the VA, BVA and finally CAVC veterans court I argued that the raters never considered or dismissed all the evidence and argued/contended that they misinterpreted the laws, regulations and effect at time of the decision.  I of course listed those 38 CFR regs and 38 U.S. Code violations they committed, etc.  Also I listed all the evidence I submitted that I claimed without proof that they failed to consider or was available and not before them.  All this was sheer speculation on my part but it worked.

I did have a partial victory at the CAVC when the judge said they did commit a non CUE error by failing to adjudicate me for an inferred/implied TDIU claim prior to 1998.

This led to my receiving P&T TDIU with five years back pay.  Half a loaf is better than no loaf.  Some folks shoot for the moon and go for it with nothing to loose.  That was me then.

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

[Dot09]

Dustoff 

Like I said the reason I know is because it’s in the evidence log that they took only the first three pages on my shoulders and didn’t include the last 5 pages that was on my mental health. Those pages were omitted in preparing my case to the raters. I’m assuming the VARO dropped the ball in this case. In the system my attorney was able to look up all evidence submitted towards the claim and what she noticed was my dbq was not in there as well as they picked and chooses what pages to submit and that was only my shoulders. Granted I have dates for everything that was submitted to them because of vbms access what the attorney has as my poa

 

P.S. During that review I was evaluated for my mental health and shoulders. So as far as the cue goes I believe it is solid. The c&p exam was my question when I wrote this post in which I was asking can I discredit the dr not that I was asking if his exam was cue. I know you can’t claim cue for duty to assist or faulty exams.

Edited November 4, 2023 by Dot09

[Dustoff1970]

Sounds like your attorney is very much on the ball.  Good luck.

[Dot09]

Not to brag but I actually will take the credit for finding this. She just pointed out what all they omitted from the raters in her vbms access. I just had to thoroughly explain to her that they failed to review evidence that was submitted. Granted it took many emails before she decided to fully investigate. Thank you dustoff for providing your advice much appreciated.

Edited November 4, 2023 by Dot09

[Dot09]

Bronco 

Clear and unmistakable error (referred to as CUE) involves a situation where the correct facts(I.e. my imo and dbq) as they were known at the time were not before the VA or the law and regulations in effect at the time of the VA’s decision were not applied correctly. 
 

P.S. sorry if it seems that I am argumentative I’m really just confused with cue is all. I think I have an idea but am then thrown off. I understand it is always better to refile than file a cue because benefit of doubt is thrown out but all I have now is to file cue since it has been so long and since my time has since passed to appeal.

Edited November 4, 2023 by Dot09