Yes-like Carlie that is all I found too- but:
This is in part a CAVC decision:
Leonita J. Coakley, Appellant,
Anthony J. Principi,
"Rating agencies will
handle cases affected by change of medical findings or diagnosis, so
as to produce the greatest degree of stability of disability
evaluations consistent with the laws and [VA] regulations governing
disability compensation and pension. It is essential that the entire
record of examinations and the medical-industrial history be reviewed
to ascertain whether the recent examination is full and complete,
including all special examinations indicated as a result of general
examination and the entire case history. . . . Examinations less
full and complete than those on which payments were authorized or
continued will not be used as a basis of reduction. . . . Moreover,
though material improvement in the physical or mental condition is
clearly reflected the rating agency will consider whether the
evidence makes it reasonably certain that the improvement will be
maintained under the ordinary conditions of life. . . . Rating
boards encountering a change of diagnosis will exercise caution in
the determination as to whether a change in diagnosis represents no
more than a progression of an earlier diagnosis, an error in prior
diagnosis or possibly a disease entity independent of the service-
"Subsection © of 38 C.F.R. 3.344 limits the application of
subsection (a) to 'ratings which have continued for long periods at the
same level (5 years or more).' Such disabilities are considered
'stabilized', and the regulation thus requires a high degree of accuracy
in decisions reducing those ratings." Schafrath v. Derwinski, 1 Vet
App. 589, 594 (1991) citing 38 C.F.R. 3.344 ©.
The Board, in its decisions, is statutorily required to provide "a
written statement of [its] findings and conclusions, and the reasons or
bases for those findings and conclusions, on all material issues of fact
and law presented on the record." 38 U.S.C. 7104(d)(1). The statement
must be sufficient to permit an appellant to understand the basis for the
Board's decision, as well as to facilitate review in this Court. See, e.g
., Buckley v. West, 12 Vet.App. 76, 84 (1998); Allday v. Brown, 7 Vet.
App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
The Board must analyze the credibility and probative value of the evidence,
account for the evidence it finds persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994).
In this case 38 C.F.R. 3.344(a) applies because the appellant's
20% rating for cervical spine arthritis was in effect from April 29, 1993,
to September 22, 1998, which is more than five years. R. at 672-675, 750-
54. In the March 22, 2000, decision here on appeal, the Board correctly
framed the issue as a rating-reduction claim, rather than an increased-
rating claim, and stated the requirements of 38 C.F.R. 3.344(a).
However, the Board failed to determine whether the improvement in the
appellant's condition was reasonably certain to be maintained under the
ordinary conditions of life. See 38 C.F.R. 3.344(a); Brown (Kevin), 5
Vet.App. at 420. In a rating reduction case, not only must the Board
determine that the veteran's disability has actually improved, but that
the improvement reflects an increased ability in the veteran to function.
See Brown (Kevin), 5 Vet.App. at 421; see also Faust v. West, 13 Vet.
App. 342, 349 (2000). When the rating has been in effect for five years
or more, VA regulations specifically require that, "though material
improvement in the physical or mental condition is clearly reflected the
rating agency will consider whether the evidence makes it reasonably
certain that the improvement will be maintained under the ordinary
conditions of life." 38 C.F.R. 3.444(a) (emphasis added).
The Board reviewed the entire medical history of the appellant's
cervical spine examinations including the findings of the September 1998
examination which reflected material improvement in the appellant's
condition. R. at 9-12. The Board stated: "There was improved range of
motion of the cervical spine, and it was noted that motion was 80 percent
of normal . . . X-rays of the cervical spine in September 1998 were
considered to be within normal limits. The examiner noted that there was
no evidence of weakness, pain, or functional loss due to pain." R. at 12
. However, the Board did not determine whether this improvement was
reasonably certain to continue given the ordinary conditions of the
appellant's life. The VA doctor who conducted the September 1998
specifically stated that, "any additional limits on her functional
ability due to repeated use or during flare-ups are probably on a
functional basis and not related to any objective impairment." R. at 743.
The September 1998 examination did not determine whether the appellant's
daily activities would lead to repeated use or "flare-ups" that would
cause an impairment in her ability to function, and the Board failed to
address this issue as well.
Although the appellant asks the Court to reverse the Board's
determination that a rating reduction for her cervical spine arthritis was
proper, reversal is the appropriate remedy only when "[t]here is
absolutely no plausible basis" for the BVA's decision and where that
decision "is clearly erroneous in light of the uncontroverted evidence
in appellant's favor." Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992
). "Where the Board has incorrectly applied the law, failed to provide an
adequate statement of reasons or bases for its determinations, or where
the record is otherwise inadequate, a remand is the appropriate remedy."
Tucker v. West, 11 Vet.App. 369, 374 ( 1998); see generally Hicks v.
Brown, 8 Vet.App. 417, 422 (1995). The statement of reasons or bases
supporting the Board's decision to affirm the rating reduction for the
appellant's cervical spine arthritis is inadequate because it does not
address the issue of whether the appellant's improved condition is "
reasonably certain to be maintained under the ordinary conditions of life"
as required by 38 C.F.R. 3.44(a). Accordingly, a remand of this
matter is the appropriate remedy for the Board to reconsider, properly
adjudicate, and explain the rating reduction for the appellant's cervical
C. Back Condition
The appellant asserts that her unadjudicated claim for a back
condition should be remanded to the Board for adjudication. Appellant's
Br. at 15. Appellate review of a decision by an agency of original
jurisdiction (AOJ), usually the RO, is initiated by the claimant's
filing of a timely NOD with the AOJ and, following the issuance of an
SOC, is perfected by the claimant's filing of a Substantive Appeal with
the AOJ. 38 C.F.R. 20.200 (2002); see also 38 U.S.C. 7105;
Brannon v. West, 12 Vet.App. 32, 34 (1998); Roy v. Brown, 5 Vet.App.
554, 555 (1993); Rowell v. Principi, 4 Vet.App. 9, 14-15 (1993).
The Substantive Appeal in a case must be filed within one year after
mailing of notification of an adverse AOJ decision or within sixty days
after the AOJ mails an SOC, whichever period ends later. See 38 U.S.C.
(1), (d)(3); 38 C.F.R. 20.302(
(2002). VA regulations
require that the AOJ issue an SSOC "when additional pertinent evidence
is received" after an SOC has been issued. 38 C.F.R. 19.31 (2002).
If a claimant submits additional evidence within one year
of the date of notification of the decision being appealed and that
evidence requires the issuance of an SSOC pursuant to 38 C.F.R. 19.
31, then the claimant is entitled to no less than 60 days from the mailing
of the SSOC to file a Substantive Appeal. 38 C.F.R. 20.302(2) (2002
In this case, the appellant filed her original claim for a back
condition in July 1986, and it was denied in January 1987. R. at 227, 245
. The RO declined to reopen the appellant's claim for a back condition in
April 1993, on the basis that the appellant had not submitted any new and
material evidence to establish service connection for a back condition.
Suppl. R. at 23-24. The appellant filed a timely NOD, and the RO issued
an SOC on May 27, 1993. R. at 395-98; Suppl. R. at 28-33. On May 21,
1993, seven days before the SOC was issued, the RO sent the appellant a
letter stating that it did not have her SMRs from her second period of
active duty and requested that she submit them. R. at 401. The appellant
submitted the SMRs from her second period of active duty in June 1993,
which was within the one year time period from the date of notification of
the RO decision. See R. at 435, 589. If the appellant's SMRs from her
second period of active duty were pertinent to her claim for a back
condition, the VA was required to issue an SSOC and the appellant was
entitled to no less than 60 days from the mailing of the SSOC to file a
Substantive Appeal. See 38 C.F.R. 19.31; 20.302(2). Accordingly, the
Board was required to address the matter or remand it for adjudication, if
appropriate. Since the Board did not do so, a remand is required.
D. Psychiatric Disorder
The appellant argues that the Board erred by failing to address her
claim for secondary service connection for a psychiatric disorder which
she claims is related to her service-connected migraine headaches.
Appellant's Br. at 18. The appellant raised the issue of secondary
service connection for a psychiatric disorder caused by her service-
connected migraine headaches after the RO declined to reopen her claim for
direct service connection for a psychiatric disorder in February 1994. R.
at 589- 92. The appellant's assertion of secondary service connection for
a psychiatric disorder appears in both her April 1994 NOD and her August
1994 Substantive Appeal. R. at 604, 630. The RO did not address the
appellant's claim for secondary service connection for a psychiatric
disorder in the May 1994 SOC, and the Board determined that "[t]he lay
statements by and on the appellant's behalf" that the appellant's
psychiatric disorder is related to her migraine headaches, "cannot serve
as a predicate to reopen the claim." R. at 8, 621.
The Board found that lay assertions of medical causation absent
competent medical evidence are not sufficient to meet the "new and
material evidence" burden imposed by 38 U.S.C. 5108 to reopen a
veteran's claim. However, in this case there is competent medical
evidence of record that the appellant's psychiatric disability is caused
by her service-connected migraine headaches, including such findings in VA
treatment records. R. at 374, 377, and 385. Because the appellant filed
an NOD with regard to the issue of entitlement to secondary service
connection for a psychiatric disorder, and there was competent medical
evidence of record supporting this claim, the Board was required to
address the matter or remand it for adjudication, if appropriate. See
Buckley v. West, 12 Vet. App. 76, 82 (1998); Isenbart v. Brown, 7 Vet.
App. 537, 540-541 (1995); Suttman v. Brown, 5 Vet. App. 127, 132 (1993)
. Since the Board did not do so, a remand is required.
E. Extraschedular Consideration for Migraine Headaches
The appellant asserts that the Board was required to determine
whether an extraschedular rating analysis was appropriate for her
service-connected migraine headaches. Appellant's Br. at 19. A claimant
may be entitled to an extraschedular rating in exceptional cases of
unusual disability or marked interference with employment. 38 C.F.R.
(1) (2001). The appellant did not raise the argument of
entitlement to an extraschedular rating for her service-connected
migraine headaches to the Board. The Federal Circuit has held that
although this Court "may hear legal arguments raised for the first time
with regard to a claim that is properly before the [C]ourt, it is not
compelled to do so in every instance." Maggitt v. West, 202 F.3d 1370,
1377 (Fed. Cir. 2000). Moreover, the ROA reflects that the appellant
withdrew her appeal of entitlement to an extraschedular rating after she
was notified of the rating increase from 30% to 50% for her migraine
headaches. R. at 703, 705, and 707. Once the appellant communicated to
the RO, by phone, that she wished to withdraw her appeal, the RO informed
her that without a written statement of withdrawal, her withdrawal was
only effective for those claims receiving the "highest evaluation possible
under the applicable diagnostic code." Id. The 50% rating for her
migraine headaches was the highest evaluation possible for that claim
under the applicable diagnostic code. 38 C.F.R. 4.124(a), Diagnostic
Code (DC) 8100 (1997); R. at 697. Therefore, the appellant effectively
withdrew her appeal for an extraschedular rating for her migraine
headaches, even though she did not submit a written statement of
withdrawal. Additionally, we could not hold that the Board's failure to
consider an extraschedular rating was erroneous because such ratings are
warranted only in exceptional or unusual circumstances, such as marked " Etc
I cant find anything as specific as what you need-
BUT the Diagnostic code was wrong in your past decision- as I understand it- and the actual diagnostic code (based on documented medical evidence of proper diagnosis) is what would give you a retro award under a CUE award-
I dont see this as a complex issue.
Bentley V Derwinski-
The veteran clearly proved with medical evidence that the DC he was given in a 1960 final decision was erroneous.
This case involved a reduction to 40 but still the court found the DC was erroneous in 1960.
Myler V Derwinski- I posted this case here before-
A final 1953 decision was found by the court to be erroneous because the proper percentage rating used for the Diagnostic code was wrong.
Myler was assessed by NVLSP as a "failure to assign a disability rating that was required by the clear and undisputed evidence of record."
You received the wrong DC and therefore the wrong rating as I understand it-
I feel all you need to do is identify the wrong diagnostic code, make sure you send them copy of the rating decision, and then
state that your proper diagnostic code at that time was ----, attach the relevant documented medical evidence you have to support the actual correct diagnostic code,and then state that the outcome of the prior denial was manifestly altered by VA's failure to award you service connection due to their clear and unmistakable assignment of the wrong diagostic code in the final decision.
There is considerable info here at hadit on CUE claims-
many were CUES because the VA proposed reductions-others have different factors involved.
I needed one sole document to award a CUE I had many years ago.
The VARO had and the BVA had it-apparently they didnt read it.
The Regional counsel read it some years ago and awarded the CUE-
My present Cues are not complex ether-I used OGC pres ops and BVA decision for them but the regulations that warrant the CUE award and the decision themselves were all I really needed to send them.
Since their initial denial was based on a ridiculous and untrue statement-(as the C file reveals) I pounced on that right away-
they failed to give proper diagnostic codes as well as failed to even give ANY DC at all on one of my husband's catastrophic disabilities under 1151,and failed to award SMC.
That is a CUE.
I only researched similiar cases to add how the BVA interpreted the same type of CUEs.
The OGC pres ops and also the regs I sent them support that they made legal errors in a past decision.
The medical evidence has to be established to award a CUE like yours.
My husband had a CVA under 1151 which had to be rated at 100%
His 1151 CAD disease had to be rated at 100%.
this was established by medical evidence-ironically only weeks before the first decision came.
By the time my second award came this still had not been corrected.
Medical evidence and service connection (to include 1151 awards)has to be already established to support a wrong DC code and rating under CUE.
interference with employment or frequent periods of hospitalization as to
render impractical the application of the
regular schedular standards, which, on the record, the appellant has
not presented. 38 C.F.R. 3.321(
. Accordingly, the Board had no
obligation to address the appellant's entitlement to an extraschedular
rating for her migraine headaches.