Angela

Rockhound, You said that "but they made an erroneous statement that stated that my adnormal behavior was alternatively diagnosable as a psychosis or personality disorder, when in fact the summery made no such differentiation or statement of fact." If the decision says that that statement was in the summary when in fact it was not, then that is a "misstatement of fact about the evidence". Here's a CAVC decision that might be helpful CAVC 98-1801

Carlie, You rock! I'm so glad you found this! It is the first BVA decision I've seen that applies the CUE rules the way they were actually written and explained in the Russell decision and intended to be applied (by Congress). Thanks so much for posting it here! Here's another BVA decision you might want to read. Not nearly as well written as the one you found, but still interesting, and refers to CVA decision. http://www.va.gov/vetapp08/files1/0803609.txt Oh, and here's one that deals w/improper severance of service connection... http://www.va.gov/vetapp08/files1/0806253.txt

Halos2, Just re-read your question. Once the BVA makes a decision, if you don't agree with it you appeal to the Court of Veterans Appeals (CAVC).

Even if we can't file class action law suits against the VA, and BVA decisions are applicable only to the individual cases, it seems that the Equal Protection Clause in the constitution would still come into play and require the VA to decide cases equitably .... but I've only come across one case where it was even argued before the BVA & CAVC and it failed in that case because the vet misinterpreted it. Couldn't the Equal Protection clause be argued here though? I've included the Equal Protection argument in my CUE - Arguing that I was entitled to the same interpretation of the Diagnostic Code that was articulated and applied in another veteran's case (prior decisions and other appeals may be considered to the extent that they reasonably relate to the case presented). I expect my BVA decision will either misstate this argument or ignore it altogether, but at least I'll then be able to argue it before the CAVC. Not sure if I should have included this here or as new thread or in CUE section. Confusing to me. Sorry if I put in wrong area.

I'd like to read it, Berta. Thanks!

Rockhound, I agree with you, you were shafted. I read another decision which may be helpful to you in getting service connected. This decision is for earlier effective date but describes the hoops the vet had to go through to get service connected in the first place. I'll look through the CAVC cases and see if I can find the history on this one. Conley v Peake Fed Circuit Sep 2008

Hopefully the Supreme Court will grant the writ and hear the case. The last Veteran's Benefits case I could find that they had reviewed was the Brown v Gardner in 1994. Since then, they have allowed the Federal Circuit to bypass the Gardner decision with Chevron deference to agency interpretation of their own regulations... Just as they are now in the case of the Blue Water Vets. I was glad to see the vet's brief pointed out that it should not matter if the appeal mentioned Gardner before the Federal Circuit. The law is the law and the Federal Circuit should know and apply it weather it's specifically mentioned or not! Sorry to go off, it's just that this specific issue (Gardner versus Chevron) has had me grinding my teeth ever since Smith was overturned.

Here is a link to the Haas Case on the docket at the Supreme Court. Hope this is what you need. Haas on Supreme Court Docket

I didn't think I'd be service connected for my back when I retired. After an auto accident had neck and back pain but x-rays and mri showed no damage. Went through physical therapy for a few months, and then had occasional pain but never saw another doctor. The DAV rep just wrote down everything I'd ever been seen for when he went through my records and I thought he was nuts for including this. But when I went to the exam for the VA they did x-rays that showed slight narrowing of spaces between vertebrae, asked about the current symptoms and how often they reoccurred, and I was service connected - for arthritis. Something of that sort might happen to you also but you won't know unless you apply. Best of luck!

When you apply list every issue, whether you have dx yet or not. They will set you up with an exam that should address every issue you list. You could be service connected for problems that you haven't been seen for also. Too many service members grit their teeth and bear it in order to get the job done, or self medicate, etc. instead of seeing a doctor, so they end up with no record of the problem during active duty. I bought my own wraps for wrists and ankles for many years to control the pain when I'd have flair ups. It just seemed easier to take care of it myself instead of sitting in a waiting room when I already knew what they would prescribe. The result, not chronic, only transitory, so not service connected. And like I said, I didn't know of the importance of "Buddy Statements" until long after the initial denial. So now I'm in the process of getting it reopened w/buddy statements and new exams. Apply for everything that's wrong with you.

Way to go Googy! To others... CFR 350 is referring to 38 CFR 3.350 which deals with special monthly compensation ratings.

DblTap1, I applied for VA benefits about a year before retirement. The DAV (Disabled American Vets) held a mass briefing and had counselors on hand to go through medical records and fill out claims forms, and I took advantage. The VA was very helpful while I was still AD - set me up with vocational rehab counselor months before I retired, etc. Unfortunately, after retirement they were not quite so helpful. 1) Make sure you keep a copy of every medical record, lab test, x-ray etc. and also any correspondence to or from the VA. They may do a good job on your claims but they may not. If they don't, your good record keeping now could make all the difference. 2) All correspondence should be sent registered mail with return receipt! If they deny receiving something from you, it can cost you. The only way you can prove it was sent & received is with the signed & dated receipt. Keep the signed & dated receipt with the copy of what you sent and the cash register receipt from the post office receipt from when you paid to mail it. 3) Similarly, if you hand deliver anything, always have a second copy on hand and make sure they date stamp receipt on EACH PAGE of the copy you keep. They might give you dirty looks when you request this, but INSIST! 4) Buddy Statements - Statements from people who know about your injuries, how they were acquired, how long you've suffered from them, how they've affected your quality of life and ability to support yourself, etc. No one told me how important these statements could be until I found my way to this forum. I sure wish they had. Buddy statements (and even your own statement to go along with your claim and medical records) can tip the scales in your favor. I can't tell you how many BVA decisions I've read where the statements from friends and family have made the difference between a higher or lower rating or even service connection. I'm sure there are alot more things that it's really important for you to know that I just can't think of right off the bat. But there are also many helpful (and frankly more knowledgeable) people here at HADIT that will chime in and fill in the gaps. best of luck

Rockhound, Found the new TBI rules posted here. http://ecfr.gpoaccess.gov/

Forgot to mention 38 cfr 4.45 The joints. (not sure if joints are your problem but just in case...) 4.45 states covers weakened movement, excess fatiguability, and the like.

Thank you for your service! Any meds taken and residuals from treatment or meds should also be included (weakness, pain, dizziness, indigestion or heartburn, ect.), especially weakness because... "weakness is as important as limitation of motion, and a part which becomes painful on use must be considered seriously disabling" (38 cfr 4.40) Best of luck to you.