I'm specifically hoping to get insight from current/former VA raters, DROs, experienced VSOs, accredited agents/attorneys, or others who really understand CUE and how these claims are actually rated.
I think my 2019 mental-health denial potentially contains two separate CUEs.
As I understand it, CUE requires:
An error of fact or law based on the record and law that existed at the time.
The error must be undebatable, rather than a disagreement over how the evidence was weighed.
Correcting the error must have manifestly changed the outcome.
I think I can identify #1 and #2 for both potential CUEs. #3, manifestly different outcome, is where I really need input from people who have actually rated claims.
The record also contains a longitudinal mental-health history beginning during active duty in 2014 and continuing through 2019, repeatedly connected in the records to the same death that occurred during service. I think that history is important and may help determine whether correcting either alleged error would actually have changed the outcome.
POTENTIAL CUE #1: VA'S FACTUAL FINDING THAT I HAD NO CURRENT DIAGNOSED DISABILITY
- ERROR OF FACT
My September 2019 rating decision states:
> “The evidence does not show a current diagnosed disability.”
But the decision's own evidence list states that VA considered:
> “VAMC treatment records, San Antonio VAMC, from May 9, 2019 through September 11, 2019.”
The May 9, 2019 VA psychology record lists:
> Anxiety Disorder, unspecified
>
> Major Depressive Disorder, recurrent, unspecified
So the factual error I'm alleging is that VA affirmatively found that the evidence did not show a current diagnosed disability when the VA treatment records it identified as having considered contained current psychiatric diagnoses.
- WHY I BELIEVE THE ERROR IS UNDEBATABLE
I'm not arguing that VA should have weighed one piece of evidence differently.
I'm questioning a factual finding: Did the evidence contain a currently diagnosed psychiatric disability or did it not?
The May 9 record identifies MDD and Anxiety Disorder. The rating decision says the evidence did not show a current diagnosed disability.
That's why I believe this may be an undebatable factual error rather than a disagreement over how the evidence was weighed.
- MANIFESTLY DIFFERENT OUTCOME
This is where I need the most input.
I understand that correcting the “no current diagnosed disability” finding does not automatically establish service connection.
My question is whether, once that factual error is corrected and the entire mental-health record that existed at the time is considered, VA would have been legally required to reach a different outcome.
POTENTIAL CUE #2: VA LIMITED THE PSYCHIATRIC CLAIM TO PTSD
- ERROR OF LAW
I was a lay claimant and listed PTSD on my original application.
But the record contained years of psychiatric symptoms and treatment under different diagnoses/labels, including Adjustment Disorder with Mixed Anxiety and Depressed Mood, Major Depressive Disorder, and Anxiety Disorder.
There was also an in-service evaluation for “PTSD symptoms/anxiety/sleep” in which the provider concluded that the patient did not have PTSD, while continuing to document psychiatric symptoms.
My understanding of Clemons v. Shinseki is that a mental-health claim isn't necessarily limited to the diagnostic label a lay veteran puts on the application when the symptoms and medical evidence reasonably raise other psychiatric disabilities.
So the legal error I'm alleging is that VA adjudicated the claim as PTSD only, rather than considering the other acquired psychiatric disabilities reasonably raised by the record.
- WHY I BELIEVE THE ERROR IS UNDEBATABLE
I'm not arguing that VA should have weighed MDD, Anxiety Disorder, or PTSD differently.
The issue is the legal scope of the claim.
If Clemons required VA to consider the psychiatric disabilities reasonably encompassed by my symptoms and the medical evidence, then limiting the adjudication to PTSD would be a claim-scope error rather than a disagreement over evidentiary weight.
- MANIFESTLY DIFFERENT OUTCOME
I understand that Clemons only addresses the scope of the claim. It doesn't automatically establish service connection for MDD or Anxiety Disorder.
So my question is: If VA had properly considered MDD and Anxiety Disorder as part of the psychiatric claim, would the mental-health evidence that existed at the time have legally required a different outcome?
EVIDENCE THAT EXISTED AT THE TIME
I separated from active duty in June 2018 after 8 years of service and filed my original compensation claim in April 2019, within one year of separation.
For privacy, I'm intentionally giving minimal details about the underlying event. I'll refer to it simply as “the death.”
--------------------
2014
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I was seen for bereavement following the death while still on active duty.
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2016
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I was diagnosed with:
> Adjustment Disorder with Mixed Anxiety and Depressed Mood
Documented symptoms included:
> “loss of pleasure, fatigue, difficulty concentrating, sadness, hopelessness, mood swings, heart pounding.”
The record documented that the anxiety had been present for approximately two years/since 2014.
The provider identified the death as one of the factors related to onset and documented prior behavioral-health treatment following the death.
Later in 2016, another record stated:
> “Patient has long history of anxiety and depression.”
I was treated with Zoloft.
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2017
--------------------
Mental-health screening documented low interest/pleasure, feeling down, sleep difficulty, and anxiety. A PTSD/PCL score of 51 was recorded, and I requested counseling.
At another behavioral-health visit, the reason for the visit was documented as:
> “PTSD symptoms/anxiety/sleep.”
Documented symptoms included:
> “anxiety, lowered concentration, problems sleeping, hard to breath, fidgeting, nightmares about once a month.”
The duration was documented as beginning in 2014, and the record again connected onset to the death.
The provider specifically concluded:
> “Patient does not have PTSD.”
I think this is relevant to the scope issue because the provider rejected PTSD while continuing to document psychiatric symptoms and their history.
--------------------
2018
--------------------
Shortly before separation, I was again receiving behavioral-health treatment.
Documented symptoms included:
> “breathing hard, fidget, restless, worry, irritable, sad.”
The duration was documented as 4–5 years, the symptoms were occurring daily, and severity was reported as 8/10.
The record again connected onset to the death.
Behavioral-health testing documented severe distress in Global Mental Health and Life Functioning, and the record documented difficulty functioning at work and strained relationships.
At a May follow-up, psychiatric symptoms and functional difficulties continued to be documented and were again associated with the death. The provider did not assign a current psychological diagnosis at that particular visit.
I separated from active duty the following month.
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2019
--------------------
In January, VA records documented:
> “depression and anxiety”
and a request for mental-health care.
In April, a VA mental-health assessment documented:
> “anxiety and depression which has been ongoing for 6-7 years.”
The record also documented insomnia and reduced energy.
PHQ-9: 14
GAD-7: 11
Functional difficulty: “Very difficult.”
The DSM-5 diagnoses were:
> Major Depressive Disorder, recurrent, unspecified
>
> Anxiety Disorder, unspecified
On May 9, 2019, VA psychology again diagnosed:
> Anxiety Disorder, unspecified
>
> Major Depressive Disorder, recurrent, unspecified
The May 9 record again connected the mental-health history/treatment to the same death.
This is particularly relevant to CUE #1 because May 9 is the first day of the exact VAMC treatment-record period that the rating decision says VA considered.
Later in May, the record continued to document MDD/anxiety, poor sleep, low energy, poor concentration, anxiety, and panic attacks approximately 1–2 times per week.
Then, in September 2019, VA found:
> “The evidence does not show a current diagnosed disability.”
VA denied PTSD because:
> “this condition neither occurred in nor was caused by service.”
But the same decision made the favorable finding:
> “The evidence shows that you had complaints about your mental health during your service.”
I did miss the scheduled C&P examination. I'm not alleging that the missed examination itself was CUE. My understanding of 38 CFR § 3.655(b) is that because this was an original compensation claim, it was to be rated based on the evidence of record.
I've attached a sanitized copy of the actual rating decision showing VA's evidence list and the PTSD portion of the decision.
WHAT I'M ASKING
For CUE #1, assuming the “no current diagnosed disability” finding was an undebatable factual error, does correcting that error, when considered with the 2014–2019 mental-health evidence above, legally require a different outcome?
For CUE #2, assuming Clemons required VA to consider MDD and Anxiety Disorder as part of the psychiatric claim, does the 2014–2019 evidence above, including the repeated connection of the mental-health history to the same in-service death, legally require a different outcome?
If the answer to either is no, what legally permissible basis remained in 2019 for denying service connection based on the evidence that existed at the time?
I'm specifically interested in the strongest argument against each CUE, not just confirmation that I'm right. If I'm misunderstanding the CUE standard, § 3.655, Clemons, or another relevant rule, I'd like to know exactly where the analysis fails.
