Cue

[nanaeris]

B) I found this case on the internet. Citation Nr: 9913396; Date: 05/17/99; Docket NO: 98-00 006

I think this is what I was looking for. It applies to the Presumption of Soundness, MEB, and PEB. This is something I have been trying to figure out and haven't been able to get the VA to clarify for me, if there is a difference between the MEB and PEB which one carries the most weight. In this case the MEB stated this individual developed a mental disorder in service and his entrance exam stated he was in good mental health. He was treated in a military hospital and he had made a statement that mental condition pre-existed military service. The PEB stated his mental condition pre-existed military service and was not aggravated by military service. The VA denied his claim as not service-connected. In short he later filed a C&UE claim. The BVA stated that the RO did not apply the Presumption of Soundness and the PEB did not address the MEB decision when he was discharged or his treatment record while in service and granted his C&UE. In my case I had three MEBs that stated my bilateral knee condition pre-existed service but was permantently aggravated by service. My PEB stated my condition was not aggravated by service. The VA on my initial decision denied my claim in 1976. When I reopen my claim in 1998 and won the appeal after 2 years. I have asked and tried to get the VA to say the presumption of soundness was not applied in their initial decision and the MEB was not considered in their decision. When I read this case, every thing that happen to this veteran happened to me and he won on C&UE. Can anyone give me some advice on how to proceed. Do I use this case to show the VA about their error or do I go and quote the C.F.R laws and stature? Any advice would be greatly appreciated.

Think everybody on this site.

nanaeris.

[carlie]

Here's the BVA case :

http://www4.va.gov/vetapp99/files2/9913396.txt

Citation Nr: 9913396

Decision Date: 05/17/99 Archive Date: 05/26/99

DOCKET NO. 98-00 006 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Cleveland,

Ohio

THE ISSUE

Whether a February 1988 rating decision which denied service

connection for a nervous disorder was clearly and

unmistakably erroneous.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

D. S. Nelson, Associate Counsel

INTRODUCTION

The veteran served on active duty from September 1986 to

December 1987.

This appeal to the Board of Veterans' Appeals (Board) arose

from a rating decision in September 1997 by the Department of

Veterans Affairs (VA) Regional Office (RO) in Cleveland,

Ohio.

FINDING OF FACT

The February 1988 rating decision, in failing to apply the

presumption of soundness, committed an error which, had it

not been made, would have manifestly changed the outcome

entered at the time of that decision.

CONCLUSION OF LAW

The February 1988 rating decision, in failing to grant

service connection for a nervous condition, was clearly and

unmistakably erroneous. 38 U.S.C.A. §§ 331, 332 (West 1979);

38 C.F.R. §§ 3.303, 3.304(b) (1987); 38 C.F.R.

§§ 3.104(a), 3.105(a) (1998).

REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran contends that the rating decision of February

1988 involved clear and unmistakable error (CUE) in that an

August 1986 psychiatric evaluation was not considered by the

RO.

The decision of a duly constituted rating agency or other

agency of original jurisdiction on which an action was

predicated will be final and binding upon all field offices

of VA as to conclusions based on evidence on file at the time

and will not be subject to revision on the same factual basis

except by duly constituted appellate authorities or except

for new and material evidence. 38 C.F.R. § 3.104(a).

Previous determinations which are final and binding,

including decisions on claims for service connection, will be

accepted as correct in the absence of clear and unmistakable

error. Where evidence establishes such error, the prior

decision will be reversed or amended. 38 C.F.R. § 3.105(a).

The United States Court of Veterans Appeals (the Court) has

propounded a three-pronged test to determine whether CUE is

present in a prior determination:

(1) [E]ither the correct facts, as they

were known at the time, were not before

the adjudicator (i.e., more than a simple

disagreement as to how the facts were

weighed or evaluated) or the statutory or

regulatory provisions extant at that time

were incorrectly applied; (2) the error

must be "undebatable" and of the sort

"which, had it not been made, would have

manifestly changed the outcome at the

time it was made"; and (3) a

determination that there was CUE must be

based on the record and law that existed

at the time of the prior adjudication in

question.

Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell

v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

In the veteran's case, a February 1988 rating decision denied

service connection for a nervous condition. The RO found

that the veteran's nervous condition had preexisted service

and was not aggravated by his service. The veteran did not

file a notice of disagreement for that decision within one

year thereafter, and the decision became final.

The evidence at the time of the February 1988 rating decision

consisted of service medical records. An August 29, 1986

medical record indicates that the veteran was referred for a

psychiatric evaluation in response to answers he had provided

on the medical history portion of his August 28, 1986 service

entrance examination. The impression was no current evidence

of a mental disorder, prognosis good. In June 1987 the

veteran began to receive treatment for a mental condition,

including a period of hospitalization. An August 1987

Medical Evaluation Board (MEB) indicates that the veteran was

diagnosed with a bipolar disorder and was found to be unfit

for duty. The MEB found June 1987 as the approximate date of

origin of his bipolar disorder. The MEB found that the

veteran's bipolar disorder did not preexist service. A

November 1987 Physicians Evaluation Board (PEB) also

diagnosed the veteran with a bipolar disorder. The PEB found

that the veteran's condition had preexisted service. The

Board observes that the PEB did not discuss the September 29,

1986 psychiatric evaluation in its proceedings. The PEB did

not indicate the basis for its finding that the veteran's

bipolar disorder had preexisted service.

The applicable law provided that service connection would be

granted if it was shown that the veteran suffered from

disability resulting from an injury suffered or disease

contracted in line of duty, or for aggravation of a

preexisting injury suffered or disease contracted in line of

duty, in active military service. 38 U.S.C.A. § 331 (West

1979); 38 C.F.R. § 3.303 (1987).

The Board notes here that a veteran was presumed to be in

sound condition when examined, accepted, and enrolled for

service, except as to defects, infirmities or disorders noted

at the time of the examination, acceptance and enrollment, or

where evidence or medical judgment was such as to warrant a

finding that the disease or injury existed before acceptance

and enrollment. 38 U.S.C.A. § 332 (West 1979). Clear and

unmistakable evidence that the disability manifested in

service existed before service would rebut the presumption.

Only such conditions as were recorded in examination reports

were to be considered as noted. 38 C.F.R. § 3.304(b) (1987).

In the present case, the veteran's August 28, 1986 service

entrance examination and the August 29, 1986 psychiatric

evaluation did not reveal that he had a psychiatric disorder

at the time of induction. Therefore, the veteran's bipolar

disorder was not recorded in an examination report within the

meaning of 38 C.F.R. § 3.304(b) (1987). Accordingly, the

Board finds that a bipolar disorder was not "noted", as

defined by 38 C.F.R. § 3.304(b), at entry to service, and

that the presumption of sound condition, therefore, attached.

As noted earlier, the presumption of soundness may be

rebutted only by clear and unmistakable evidence that an

injury or disease existed prior to service. 38 C.F.R.

§ 3.304(b). Therefore, at the time of the February 1988

rating decision, the burden of proof was on the RO to rebut

the veteran's presumption of soundness by producing clear and

unmistakable evidence that the veteran's bipolar disorder

existed prior to service. However, a review of the record

indicates that the RO erred by failing to consider and

discuss the statutory and regulatory provisions pertaining to

the presumption.

The Board notes that the February 1988 RO decision did not

discuss, even briefly, how the veteran's presumption of

soundness was involved in its decision. In this regard, the

Board notes that the February 1988 RO decision did not even

mention the August 29, 1986 psychiatric evaluation. Instead,

it appears that the RO simply relied on the findings of the

November 1987 PEB for the proposition that the veteran's

bipolar disorder preexisted his active duty service.

However, the November 1987 PEB failed to address two

important medical findings, namely 1) the finding by the MEB

that the veteran's disorder had its onset during service, and

2) the finding from the August 29, 1986 psychiatric

evaluation, which determined that the veteran was in sound

mental condition upon entry to service. In other words, the

RO did not determine whether the PEB's finding that the

veteran's bipolar disorder preexisted service, when viewed in

light of the August 29, 1986 psychiatric evaluation, clearly

and unmistakably rebutted the veteran's presumption of

soundness. See 38 C.F.R. § 3.304(b).

The Board observes that even if the PEB's findings were based

on a history given by the veteran, the statements of veterans

relating to the origin or incurrence of a disease made in

service against their own interest is of no force and effect

if other data do not establish the fact. 38 C.F.R.

§ 3.304(b)(3).

The Board finds that the evidence of record showed that the

veteran was in sound condition, as understood by 38 U.S.C.A.

§ 332, upon his entrance to active duty. The February 1988

rating decision erred in failing to apply the presumption of

soundness and that error, had it not been made, would have

manifestly changed the outcome entered at the time of that

decision. The Board finds that the presumption of soundness

was not rebutted by clear and unmistakable evidence.

Therefore, the Board finds that the record supported a

finding that the veteran's bipolar disorder was incurred in

service. 38 C.F.R. § 3.105.

ORDER

The February 1988 rating decision denying service connection

for a nervous condition was clearly and unmistakably

erroneous. Accordingly, the appeal is granted.

CONSTANCE B. TOBIAS

Member, Board of Veterans' Appeals

Department of Veterans Affairs

[LarryJ]

You state that "When I reopen my claim in 1998 and won the appeal after 2 years."

Okay.

What are you now attempting to accomplish?

What can we help you with?

[jerrbilly]

I would copy and paste the CFR codes here in this case that would substantiate your claim. Then paste them in word and present this case with the CFR laws.

this is what I would do. Take some time and do it right even if you have to put each CFR law on each page.

This is a great example of a CUE case regarding presumption of soundness.

Good luck,

Jerr

B) I found this case on the internet. Citation Nr: 9913396; Date: 05/17/99; Docket NO: 98-00 006

I think this is what I was looking for. It applies to the Presumption of Soundness, MEB, and PEB. This is something I have been trying to figure out and haven't been able to get the VA to clarify for me, if there is a difference between the MEB and PEB which one carries the most weight. In this case the MEB stated this individual developed a mental disorder in service and his entrance exam stated he was in good mental health. He was treated in a military hospital and he had made a statement that mental condition pre-existed military service. The PEB stated his mental condition pre-existed military service and was not aggravated by military service. The VA denied his claim as not service-connected. In short he later filed a C&UE claim. The BVA stated that the RO did not apply the Presumption of Soundness and the PEB did not address the MEB decision when he was discharged or his treatment record while in service and granted his C&UE. In my case I had three MEBs that stated my bilateral knee condition pre-existed service but was permantently aggravated by service. My PEB stated my condition was not aggravated by service. The VA on my initial decision denied my claim in 1976. When I reopen my claim in 1998 and won the appeal after 2 years. I have asked and tried to get the VA to say the presumption of soundness was not applied in their initial decision and the MEB was not considered in their decision. When I read this case, every thing that happen to this veteran happened to me and he won on C&UE. Can anyone give me some advice on how to proceed. Do I use this case to show the VA about their error or do I go and quote the C.F.R laws and stature? Any advice would be greatly appreciated.

Think everybody on this site.

nanaeris.

[nanaeris]

You state that "When I reopen my claim in 1998 and won the appeal after 2 years."

Okay.

What are you now attempting to accomplish?

What can we help you with?

I would like to know how do you go about filing a C&UE claim. Do I take this information to the RO or do I have to complete a form. Right now I have an appeal pending and don't won't to interupt the process. The VA just sent me back to antother C&P exam after I wrote a 12 page form 9. What I did, thank to this site and the advice I got, was go through my military medical records and got everything out about my condition and sent them a copy because it seem the VA just don't read anything when they make a decision even the DROs. It is amazing what veterans have to do to get the VA to do their jobs. I think I was wronged in 1976 and I want to make it right. I think I did my part to the contract I signed and I want the government to uphold their part of the contract. Any suggestion on how to go about filling a C&UE claim would be helpful. What I would like to do is take the information to the RO and try to get someone to explain to me why it is a C&UE. So I can have something is writing before I go forward. I think they are obligated by law to answer veterans questions. If I can't get an answer then I will asked someone in Washington DC for an answer.

Thanks everyone again on this site.

nanaeris

[LarryJ]

I would like to know how do you go about filing a C&UE claim. Do I take this information to the RO or do I have to complete a form. Right now I have an appeal pending and don't won't to interupt the process. The VA just sent me back to antother C&P exam after I wrote a 12 page form 9. What I did, thank to this site and the advice I got, was go through my military medical records and got everything out about my condition and sent them a copy because it seem the VA just don't read anything when they make a decision even the DROs. It is amazing what veterans have to do to get the VA to do their jobs. I think I was wronged in 1976 and I want to make it right. I think I did my part to the contract I signed and I want the government to uphold their part of the contract. Any suggestion on how to go about filling a C&UE claim would be helpful. What I would like to do is take the information to the RO and try to get someone to explain to me why it is a C&UE. So I can have something is writing before I go forward. I think they are obligated by law to answer veterans questions. If I can't get an answer then I will asked someone in Washington DC for an answer.

Thanks everyone again on this site.

nanaeris

Okay, so you "re-opened" your original 1976 claim in 1998 and won this "re-open" in 2000? How'm I doin' so far?

What was your "original" claim for? And, did you file it in 1976.......or was 1976 your original "denial" date?

What information did you use to "re-open" your original claim?

I agree, it sounds like you have a legitimate claim, if it is anywhere nearly like the CUE claim cited in 9913396.

You may very well wish to consult, at least, a veterans service officer, concerning this claim. Or, an attorney that deals with the VA on a regular basis.

Someone that can sit down with your extensive paperwork and help your sort things out.

Not that we can not do so, here. But, I'd feel much better the more I knew about your situation.

[nanaeris]

Okay, so you "re-opened" your original 1976 claim in 1998 and won this "re-open" in 2000? How'm I doin' so far?

What was your "original" claim for? And, did you file it in 1976.......or was 1976 your original "denial" date?

What information did you use to "re-open" your original claim?

I agree, it sounds like you have a legitimate claim, if it is anywhere nearly like the CUE claim cited in 9913396.

You may very well wish to consult, at least, a veterans service officer, concerning this claim. Or, an attorney that deals with the VA on a regular basis.

Someone that can sit down with your extensive paperwork and help your sort things out.

Not that we can not do so, here. But, I'd feel much better the more I knew about your situation.

The original claim was for bilateral knee disability which included osgood schlatters disease. No I filed the claim in 1975, the denial was in 1976. The only thing that I could see that was different was when I went to have minor surgery for osgood schlatters disease that resulted in major surgery on my left knee to remove a large cartilaginous cap. My vet center counselor had went through my SMR record and told me the VA did not include all the bilateral knee disabilities that was in my SMR. Also the VA failed to take into account the 2 MEBs which stated that the pre-existing Osgood Schlatters Disease was permantent aggravated by military service and only used the PEB which stated I had pre-existing Osgood Schlatters Disease that was not aggravated by military service. In 1998 even though I took the additional evidence to the RO in LA, CALIF. The VA still sent me to a C&P exam for only Osgood Schlatters Disease only. Even though the doctor stated that military service aggravated my condition the VA still denied my claim. So I still had to go through the appeal process. I don't even know why the VA have DROs. Every time I chose a DRO review they basically state the same thing the rater stated. On the statement from the Appeal team this time they included osgood schlatters disease history of chondromalacia, the surgery on my left knee, all though they call it debrisment, and osteoarthritis. As you can see from reading from the CUE claim cited above, my induction physical was normal, although the Military doctors stated I had osgood schlatters before I entered the military it was permanment aggravated by military service, I had 2 MEB stated my condition was aggravated by military service, and the PEB disagreed. So I see similuarities and for how the VA came to the conclusion they did in 1976 is beyond me. I have asked the VA many times in the past how they determined I had osgood schlatterd disease before I entered military service. I pointed out that I had been in the military over 2 years before the military doctors determined I had this condition. I also pointed out to the VA that the military doctors made a mistake because I had grown 2" before they determined I had this condition and that the other knee conditions was determined by orthropedic doctors before the osgood schlatters disease was discovered. I also pointed out to the VA that when I was being treated for the other knee conditions x-rays did not show I has osgood schlatters disease and it only showed up on x-rays after I had been in the military 2 years and grown 2". I know this is a long statement but as I can see with the 2 MEBs and the PEB and the induction physical being normal and the VA unable to tell me information rebutted the Presumption of soundness. What do you think?

nanaeris.