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CUE and Benefit of the Doubt Help

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Jamezam

Question

I've decided to take a crack at creating a CUE and Benefit of the Doubt failure for a claim that was originally denied in 1988, but finally approved in 2014. And, I currently have a pending NOD on the effective date of said claim.

I would be so grateful if anyone could view my CUE and original claim denial. My question is this, am I on the right track with my CUE? I have been developing my CUE using language based on an actual citation by the BVA awarding a CUE to a veteran for the same condition and circumstances in which mine was denied and quoting Title 38. It's so easy to get confused with all of the information out there.

So any advice will be greatly appreciated. I have uploaded my CUE in development phase and original claim denial.

 

 

Edited by Jamezam
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He could have asked you some questions about your service and this condition and then got it all ass backwards...that happens all the time to vets, the C & P results they get might be  nothing like what the face to face exam was about.

I am going to try to find the CAVC decision that the second BVA link was about.

I might not find it but I will try to.

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33 minutes ago, Berta said:

One more point....

(The CUE you wrote is Good but I think it can be reworked a little to use 38 CFR 4.1 et all (to include 4.6)

Do I understand these acronyms and dates correctly in the denial rating sheet?

EOD 4-24-85    Enlistment date?

RAD 3-15-88 date of your discharge?

Claim filed  3-29-88

C & P and X ray done on 5-4-88

Decision June 8 1988  

 so claim filed March 29      2 days left in March

                                           30 days in April

                                             4 days in May

36 days.......how the xxxx  did VA get the SMRs in 36 days?

 

 

I will incorporate 38 CFR 4.1 et al to include 4.6

I think EOD is Entrance of Duty

Not sure what RAD is but I did get out on something called the Gramm-Rodman Act, early ETS (End Tour of Service) RAD may be something Active Duty?

I actually filed January 28, 1988 (still active duty) and the VARO received it March 29, 1988. C&P done May 4, 1988 and X-ray report is dated May 10, 1988. Decision June 8, 1988 and then (on my birthday) I received a very short letter from the VA "WE CANNOT GRANT YOUR CLAIM FOR DISABILITY BENEFITS. THE EVIDENCE DOES NOT ESTABLISH CONNECTION FOR THE SPINE CONDITION. 

 

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26 minutes ago, mos1833 said:

jamezam

my claim was never awared . but i am makeing plans to cue aswell.

the word defect is a killer

 

 

mos1833,

DO NOT GIVE UP! I gave up on my claim in 1990 and then a Iraq war Veteran convinced me to take up my claim again in 2007. I've been battling with the VA every since. I finally received my approved claim in November 2014 after they tried to fight my QTC exam.

Do what you can to get a letter from a physician stating "he/she reviewed your service medical/treatment records AND it is more likely than not that the Veteran's condition was caused by his military service.

I submitted a letter from a chiropractor in 1990 but they blew that off, saying it wasn't considered material. Then I "convinced" a physiatrist (he was afraid of the VA for some reason) to write me a letter stating "he reviewed your service medical/treatment records AND it is more likely than not that the Veteran's condition was caused by his military service.

Also, sometimes you can get a physician or specialist to just sign something you created. For example, I filled in all of my DBQ's using factual evidence from my SMR's and from all of my private physician diagnoses and treatments, then just asked him if he would sign them, because after all, they all contain only factual medical information. Before that, he didn't have any desire to fill out paperwork. I did the same thing for the physiatrist, he just transferred my letter's language onto his letterhead and signed it.

Good luck...

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32 minutes ago, Berta said:

He could have asked you some questions about your service and this condition and then got it all ass backwards...that happens all the time to vets, the C & P results they get might be  nothing like what the face to face exam was about.

I am going to try to find the CAVC decision that the second BVA link was about.

I might not find it but I will try to.

Berta, I just noticed that the language on my rating decision states: "06-13-86. Spine seemed to protrude out approx T-10 to L3. Placed on permanent profile 9-15-86 for chronic back pain from childhood disease (Scheuermann’s Kyphosis).” And, that is definitely direct language from my SMR's.

So, maybe they did have my SMR's that fast? Nonetheless, that's really not an accession of my CUE anyway. But I did state that my SMR's demonstrate a three year period of back problems. 

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From the above quote:

<<< . Consequently, the June 1975 rating decision erred in its denial of service connection for a back disability. But for the rating decision's legal errors, the outcome in the June 1975 rating decision would have been a grant of service connection for a back disability due to in-service aggravation of a preexisting congenital condition. >>>

Remember the two ingredients- either the facts as they were known, were not before the rater (they were) or a legal statute or regulation was ignored or violated. 

Evidence cannot be reargued and a different interpretation offered as CUE. A mere dispute over evidence will never be the grounds for CUE. You need to take the BVA stuff with a grain of salt. They are merely decisions that may or may not contain error. Read Russell, Fugo, Caffrey etc. They are panel or en banc  boilerplate cites that are law. Some of the BVA decisions you read could have been appealed to the CAVC and won...or not. You can blow smoke rings all day with BVA decisions. They are instructive for their cites and little else. 

Better yet, you can go ahead and file and consume 5 years at it-maybe more - and get the same answer we provide here. I have won a CUE but it took 8 years. VA never admitted it. They merely shut up and gave me back the rating after I filed the Extraordinary Writ. If we honestly thought it would benefit you to file using 3.102 as the fulcrum, we'd be explaining how to do it in great detail to help you. 

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Yes, maybe they did them them but I feel 38 CFR 4.6 could still be the basis for your CUE:

§ 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.

Source: 38 CFR 4.1 ,et al

That is how I got them on a few CUEs....they HAD the evidence, and I could prove they had it, but  they never considered it.

I only wish I had used that regulation long ago....

I had an ad pop up into my reply and dont know if it is still visible or not to anyone and it seems to have disappeared

 

 

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