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

[broncovet]

In this thread, you have present 2 different cue theories:

1.  In the first one, You indicated you alleged the EXAMINER committed CUE:

Quote

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.

2.  In your second cue hypothesis, you alleged the cue error to be a mistake by the VARO.  

Quote

Those pages were omitted in preparing my case to the raters. I’m assuming the VARO dropped the ball in this case.

   I CONCUR with the attorney, that number 2 cue hypothesis has merit.  This sounds like an error of 38 CFR 4.6, which states:

Quote

§ 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.

Your attorney may have alleged the VARO failed to "thoroughly and conscientiously study" the applicable c and p exam documents and apply this evidence to your claim.  

    Its my unsubstantiated lay opinion that the Cue described in number 2, essentially that the rater failed to read all the documented evidence is, indeed Cue.  

 

    However, my unsubstantiated lay opinion suggests that your CUE number 1, an attack on the c and p exam/c and p examiner wont fly, because the examiner is given a presumptive that he has done his job.  And, an attack on the exam/examiner is done not by CUE, but rather by either challenging the competency of the examiner, OR rebutting the examiner's opinion with medical evidence to the contrary, aka an IMO which is favorable.  

Edited November 4, 2023 by broncovet

[Dot09]

I’m sorry if I gave that impression that I was trying cue on the examiner. I was only asking if I could send additional evidence in with a cue to discredit the dr but have come to the realization that it isn’t possible to submit anything new. Thank you for responding.

[broncovet]

The answer to your question is given in the regulations:

https://www.law.cornell.edu/cfr/text/38/20.1403#:~:text=Clear and unmistakable error is,different but for the error.

In relevant part:

Quote

(b) Record to be reviewed—(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

This precludes "adding new evidence" to support your CUE, in my unsubstantiated, lay opinion.  

[Dot09]

Sorry bronco I referred you to the wrong post. This issue is settled.

[Dot09]

Bump

[Jim Radogna]

The biggest challenge in winning your CUE claim in my opinion will be establishing that the result would have been manifestly different but for the error the adjudicator made. In other words, if the rater had considered all of the evidence you submitted (IMO & DBQ), would it have been guaranteed that your claim would have been granted? That's a tough call because if the rater gave more probative value to evidence in the record that was counter to your evidence (e.g., a negative C&P exam),  he might arguably have made an error but not necessarily a clear and unmistakable error.

CAVC gave some guidance in this regard:

"Whether it is reasonable to conclude that the outcome would have been different is not the standard that must be met for a motion alleging CUE to succeed. The governing law requires that the error be 'undebatable' and that the commission of the alleged error must have 'manifestly changed the outcome' of the decision." King v. Shinseki, 26 Vet,App 433, 422 (2014).

Best of luck with your case. CUEs are very difficult to win but not impossible.

 

 

 

Edited November 11, 2023 by Jim Radogna