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Showing content with the highest reputation on 10/05/2017 in all areas

  1. 1 point
    The VA is famous for using smoke and mirrors. Just for shoots and grins, think about some early decision you folks received in, say, 1991.The big buzz phrase then was "It was acute and transitory and resolved before separation." Let's say you bought it and didn't appeal. It's still CUE viable because that's the WRONG STANDARD OF REVIEW. Look at the statement you quoted WomanMarine. If the sublexing patella occurred in the military , then it is service connected. If you did have it and it was noted at entry, and then got worse (especially within the golden one-year period after separation), it's still service connected. To deny ignores the precept of §3.1 and §3.303(a) - to wit, if it happened in the service or got worse in the service, it's service connected absent willful misconduct. If it is found to be SC, then a finding of fact states as much. Wilson v. Derwinski 1990 (The regulation requires continuity of symptomatology, not continuity of treatment.) "Acute and transitory and resolved before separation" is a finding of fact. But it is not grounds for declaring it non-service connected. Remember, it is either service connected or it's not service connected. You can't be a little pregnant here. VA is fond of using the wrong standard of review. If the sublexing patella occurred in the service and seemed to resolve by separation, then you'd file for sublexing patella and, if it was acute, healed and asymptomatic, that would be a finding of fact. When you were discharged, you had an exhausting physical that examined you from stem to stern. You answered questions on it. It's called a DoD form 93. That becomes the benchmark against anything you claim in the future. If you did not complain about the patellar but there is evidence you were treated for it in service, it's CUE not to rate you for it. Who cares if it's 0%. That is not the issue. If you were asymptomatic, the regulation (§4.31) is specific-if there is no rating for 0% on a given VASRD rating, §4.31 authorizes a 0% can be applied. After a finding of fact showing it is SC, the next judicial step is to declare the finding of fact a conclusion of law. The conclusion of law must then be applied which is "Service connection for sublexing patella is granted." So many gloss over the Big CUE because VA has you sidelined into an alternative view of what you're claiming as CUE. You're distracted into beating a brick wall trying to argue the "The evidence does not reveal aggravation beyond the natural progression of the original injury. " when you should be arguing for the SC as the CUE. So think about that the next time you peruse old decisions for CUE.
  2. 1 point
    Failure of the VA to DTA (duty to assist) is not CUE, unfortunately. You can look up case law yourself, if you like. Remember, 2 things about CUE: 1. Think of it as a "standard of review" and not an "error", because many/most "errors" do NOT rise to the CUE "standard of review". 2. For CUE its ALL about the effective date. If the effective date was not an issue, then simply re apply for that benefit. This is not always a bad idea, either, because, if you did re apply and got benefits, you can "cue" the effective date, and your case for cue is stronger. You see, even if DTA was CUE, you have to prove its "outcome determinative", and that means you have to prove that you, indeed met the criteria for benefits on that date. That is easier to do, if you already are rated for that claim, then its all about effective dates. There is much on Cue here, I wont be repeating it here. I suggest you research some decisions on CUE, before you file one.
  3. 1 point
    We are all heroes my friend. We were lucky enough to survive. I applied back in 1997 when I was homeless and received a letter stating I had just received a Social Security Disability award. The letter stated from VA was that I was not entitled to a VA Disability Pension because they were both government programs and that I couldn't collect both at the same time. Fast forward 20 years later and it worked out for me. I got lucky. My Examiner was contracted with VA I believe only one day a week. Fridays. She was a good listener. And I had quite a lifetime story to tell. Plus a lot of proof of my medical issues since Vietnam. I just wish it had happened decades ago. Life would have been much easier for me. But i am not through yet. Hoping to catch Mom who passed on at 91.
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