Would This Be A Cue?

[justrluk]

If I've had this answered before, please forgive me. If my STRs are missing and the VA made a decision based on their assumption that a condition was pre-existing when it was not (they mention in the decision the lack of STRs) that would have changed the rating at the time, would this be a CUE?

EDIT: I may have answered my own question. After scouring the BVA site, it appears as though most cases are remanded to the RO to have them look (again) for the missing records (mine has done this and stated so in the SOC). I love this part:

"Regrettably, the Board must remand the claims...."

If the continued search for the records would be considered futile, they request another exam (why, I have no idea - if the condition did not pre-exist service) and re-evaluate the claim. Seems like an infinite loop to me...adding years to the process.

What I don't understand: how could an examiner determine if a condition did or did not exist prior to service from 30 years ago? I would think that the RO should see this simple fact - the existence of the initial entry exam - and the proof of service from that date in addition to the admitted lack of STRs as sufficient evidence to prove a CUE was commited.

Lastly, this issue is on appeal (DRO). Can a CUE be claimed on this, or do I have to wait until the appeal is resolved?

Edited December 5, 2012 by justrluk

[justrluk]

Thanks, folks. I'll study the CFR (tried this but really started getting lost in it) and see what else I can do. I don't want to slow things down, of course, but really am having some more serious health issues and have to reduce stress. This is one area as you all know that creates considerable stress. I have a VSO, but I don't know if my issue is a priority for him. I'm running out of sick and regular leave because of health issues. I know the VA is not an answer to any financial issues I might have if I get really ill and exhaust my leave, but things are getting progressively worse. Sorry for whining; just having a really painful day. This is making the depression horrible today, and obsessing over this confounding appeal is counter-productive. It's just that after 4 years, I thought this would have at least been through the DRO review I requested. Again, more whining and I am sorry for that.

Edited December 6, 2012 by justrluk

[john999]

Justurluk

Why would VA not be an answer to your financial problems if you can't work due to worsening pain? You are sitting at 90% now. I am 90% actual and I have been TDIU for 11 years. I lost my job due to chronic pain and depression. If you have any serious pain issues that will make your depression/ptsd worse. It is a negative feedback loop. I might be getting my ducks in a row for retirement. If you get fired there is sometimes questions of misconduct etc. There was in my case since the pain drove me nuts and I got fired and had to really hire a lawyer and pay him to get my retirement. It took about 7 months and I lost 25 lbs due to worry alone. I was fired one day and the same day I was in the VA hospital rubber room. If you get fired that is the place to go.

John

[justrluk]

Justurluk

Why would VA not be an answer to your financial problems if you can't work due to worsening pain? You are sitting at 90% now. I am 90% actual and I have been TDIU for 11 years. I lost my job due to chronic pain and depression. If you have any serious pain issues that will make your depression/ptsd worse. It is a negative feedback loop. I might be getting my ducks in a row for retirement. If you get fired there is sometimes questions of misconduct etc. There was in my case since the pain drove me nuts and I got fired and had to really hire a lawyer and pay him to get my retirement. It took about 7 months and I lost 25 lbs due to worry alone. I was fired one day and the same day I was in the VA hospital rubber room. If you get fired that is the place to go.

John

Thanks, John. I can only imagine your frustration and pain through all this. I had a hope that this would be resolved sooner rather than later, but that is really getting to be a joke. Also have been trying since Feb to get TRICARE to pay for meds and retroactive doctor bills. This will help, but they won't budge. I keep calling and talking to other people, getting different answers. Same story with the VA, I guess. No one wants to really help you through the process. They just want to do their small part and be done with you. Most could really care less that in doing what they thought was right, they did nothing to help you at all.

[justrluk]

Just received the letter indicating that I have docket #1 in 2013 at the ATL VARO, Tuesday Jan 15th at 0800. Now, I'm nervous....