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Where Do I Start...regular Claim Or Cue?

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Manonfire

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Hi everyone. I'm so glad I found this site. This is bit of a long story so please bear with me. I'm not sure where exactly to start with this and was hoping some of you could advise me.

In spring of 1987, after serving 2yrs in Army Reserve as a Combat Engineer (12B), I decided to go active duty. A pre-enlistment medical examination at the Beckly WV MEPS center found me to be without any conditions that would disqualify me for service. Shortly thereafter, though, while on leave, I crashed a motorcycle and spent a couple of days in the hospital due to various injuries.

I then had to go back to the MEPS to have the doctor reexamine me. Again, I was a cleared for active service and sent on my way to active duty.

During active duty, I injured my back, multiple times from carrying heavy loads. By then I was in Germany and it was then noticed that I had a condition called Spondylolisthesis. The Army then subjected me to numerous xrays, a bone scan, and physical exams in Nuremburg. All of those finding were then sent to Walter Reed for medical board review. I never did one day of PT while in Germany for the 14 months I was there.

Several months later the Army medical board review came back saying that military service was aggravating this condition and thus declared me as 10% disabled. I was then given orders for an honorable discharge and severance pay and exited the Army in August of 1988 at Ft. Jackson, SC. I don’t recall receiving a discharge physical.

When I got back home, I promptly filed my medical claim with the Huntington WV, VA. They reviewed the case, but never gave me a C&P exam or a physical, and eventually denied me as being service connected. I appealed and also tried later using a VRO which didn’t help and was promptly rejected again.

I also was limited for any further medical care since I did not meet the 24-months of continuous active service requirement even though my DD214 clearly states that I was discharged for disability and given severance pay (which nullifies the 24-month rule). They did see me on a few occasions at the clinic due to my low income however by then I was on Medicade and began seeing a private physician.

About ten years ago, without any assistance or records, I filed electronically hoping that the VA would review my service medical records and grant my claim based on the clear findings of the MEB. Again there were no C&P exams, consultations, or physicals and was again rejected due to no “New and Material” evidence. By then I had decided there were other vets worse off than me and gave up.

After living in Ohio for the past few years, I recently began having headaches and went to the Cincinnati, VA Hospital ER for help and to make sure I wasn’t having a stroke or unknown tumor in my head. While there the eligibility office discovered that the Huntington VA had made an error in denying my eligibility for services. She said that the 24-month rule was nullified due to the fact that it says on my DD214 “Physical Disability with Severance Pay” and entered me into the system as eligible for services.

This got me to thinking that I should reopen my claim since the Cincinnati VA said the Huntington VA was in error.

My back continues to deteriorate but I have no records from my private medical doctor (retired/died) from the 90’s. There wasn’t much she could advise on my back then anyway other than to tell me to take it easy, try to strengthen abdominal muscles, etc. So I have nothing to show from the 90’s.

In the early 90’s I was also diagnosed with Depression and placed on medication. I continued treatment until 2012 (had to stop due to no medical insurance). Sleep Apnea was also discovered within the last decade. The treating physician said that more than likely I had sleep apnea when I was in the service (I could sleep in or on anything). She said she could write a letter stating so if needed.

I’ve requested a copy of my files from previous physician, and from National Archives in St. Louis which I’m praying contains my MEB decision and all of my treatment records while in Germany.

Since I have been declared “eligible” for medical services, I am hoping to soon begin evaluation of my various conditions.

Questions: Would I have to start a new claim? I looked on eBenefits for previous claims and don't see any records.

If I start a new claim and won, would I be able to claim retro pay? If so, how?

Is there clear and unmistakable error in this with Huntington VA claiming I didn't have the 24-months? What about not getting any C&P exams?

I'm off to see a county provided VRO but was wondering if I should see a lawyer for this or my congressman as he takes vet casese.

Thanks to you all for any advice.

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I think you sure need to start a new claim, and also possibly consider filing CUE on the past error they made, if they award for the new claim..

"Several months later the Army medical board review came back saying that military service was aggravating this condition and thus declared me as 10% disabled. : But the VA Denied?????

Can you scan and attach the Reasons and Bases part of that denial here? And the Evidence list? (Cover C file, name, address prior to scanning it.?

Do you also have a copy of your C file?

I am thinking the might be a LOD from the MEB in there as well as the evidence you need now....

My theory is this...if the VA had probative evidence years ago and failed to consider it at all...and the veteran did not appeal and raise the evidence issue, then that is now New and Material Evidence.

"If I start a new claim and won, would I be able to claim retro pay? If so, how?"

If you can successfully prove CUE in the past denial of the SC, and the SC raised to a level of at least 10% then.

"Is there clear and unmistakable error in this with Huntington VA claiming I didn't have the 24-months? What about not getting any C&P exams?"

I sure think this is a CUE but need to read that older denial decision to really see where the CUE would lie.

But this could be a problem:

"My back continues to deteriorate but I have no records from my private medical doctor (retired/died) from the 90’s. There wasn’t much she could advise on my back then anyway other than to tell me to take it easy, try to strengthen abdominal muscles, etc. So I have nothing to show from the 90’s."

Definitely claim the depression if you believe it stems from your service as well as the sleep apnea.too....

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Whooooooo, doggies. This smells like Friday's fish dinner about Monday before the garbage men arrive, Berta. If what he's saying is true, he's got a world class- CUE. This needs explicit development so as not to screw it up. I'd say file it as a Motion to Revise the 1988 Huntington Puzzle Palace decision based on the correct facts, as they were known, were not before the adjudicator. As for manifestly changing the outcome-well, duh, about $350-500K- depending on how low they go on a Fenderson Staged rating after he wins it. You just know they'll grant at 0% and fight a year before they toss him 10 on the SOC. Then he gets to really do his hamster imitation all the way back up to the BVA again. As double whammy, by all means express an alternate theorem of entitlement as well. If the c-file doesn't contain the 1987 214 language then his 214 becomes N&ME of the 3.156(c ) variety and he gets to 1988 that way. If the 214 IS in there, then it supports the CUE theorem.

You fellers realize VA just absolutely hates this when us armchair quarterbacks see something this egregious and open our fat yaps. This is why we have a backlog according to VA.

Edited by asknod
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You have gotten answers from the "best of the best"..ask nod and Berta. I will add my 3 cents worth.

I agree with Berta that the first thing to do is order your cfile. You have to see what is actually in there, and not guess, as this is a very big deal for you, with 6 figure retro potential, as Ask nod pointed out. I can not understate the importance that if "its not in your records, then it did not happen" according to VA. So, you need to find what the records say before proceeding. Dont trust ebenefits, they are notoriously inaccurate.

After you do get your cfile, then you should strongly consider taking your claim to an attorney experienced in VA law, to see if CUE is the best way for you to go.

I dont think, however, that filing a "new" claim will hurt your chances at CUE, so you can consider strongly moving forward on the new claim and wait until an attorney looks it over (with your cfile) before deciding on whether to file a CUE, motion to reopen based on 38 CFR 3.156, or try to win your benefits on the new claim and file a CUE on the effective date after you have won benefits. Or, just win your benefits, and appeal the effective date.

It does sound like CUE, but, remember, CUE is based on evidence available at the time of decision, so you dont even know what that is, without being able to read your cfile. Thus, if they did not have the applicable evidence at the time of decsion, you may just want to consider reopening it based on 38 CFR 3.156, where you retain the benefit of the doubt. (BOD). BOD goes out the window with CUE, and that can be a deal breaker.

Thus, I would refrain from a decision until you know the contents of your cfile, and then, you can make an educated decision rather than guess at what is in your cfile. Many, many times Vets think they know what is in their cfile and, more often than not, they are wrong because VARO's manipulate the cfile (shred) to suit their own interests. For more on how the VA manipulates Veterans evidence in order to deny, see Cushman vs Shinseki.

Edited by broncovet
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While on the topic of Cushman, The Veteran's Law Review contains some in depth knowledge of Veteran's due process rights, when VA fraudulenty alters records. For me, tho, I prefer a good old Harley to a Cushman, as they are much heavier and safer.

http://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf

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The crazy one here.

Great news all around, as a newbie I can only add this.

If you file a new claim and the claim is awarded/granted, you can file a CUE for the Earlier Effective Date or you can simply file a NOD for the Earlier Effective Date. Both should get you the retro you are seeking or you can file a CUE on the original claim and a NOD on the newly awarded/granted claim. Going the route of filing a new claim and then filing a NOD under 38 CFR 3.156 would be a lot easier than filing a CUE. Since this may result in a very large retro payment, VA will most likely fight you.

You definitely want to contact an experience attorney and you definitely want to request a copy of your C-file and review it very carefully to know what was in your file and what VA had in their possession at the time of the original decision.

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