ty hadit's for taking the time to consider my plight...i have as of today sent the VARO a letter for cue consideration:
I, John Smith, do hereby make a motion to the St. Pete VARO DRO to vacate the Department of Veterans Affairs Philadelphia Regional Office rating decision dated August 21, 1995 for dysthymic disorder due to clear and unmistakable error.
I am going to borrow the characterization of the August 21, 1995 denial from the Statement of Case dated May 23, 2008 (page 24 attached as exhibit "A" along with the original rating decision) from the St. Petersburg Regional Office because it so succinctly summarizes the matter now before the DRO.
"Your service medical records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability.
A review of your claims folder reveals that service connection was previously denied for a mental disorder diagnosed as dysthymic disorder dated August 21, 1995. It is noted that the earliest evidence of a mental disability is noted in 1994 and 1995 when you were seen at a VA facility due to attempted suicide (overdose on aspirin). You had one year to appeal this decision and in the absence of such an appeal the decision became final."
I received a copy of my claims folder in October 2008, and after carefully reviewing the record, I discovered a "STAT" lab order contributable to a Tylenol overdose on July 13, 1987. In other words, a suicide attempt while in the service. (Attached as exhibit "B")
The lab order directly contradicts the Department of Veterans Affairs (Hereafter referred to as the "DVA") assertion that my service records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability. Additionally, the lab order also clearly demonstrates that earliest evidence of a mental disability as defined by the DVA's own characterization is in fact July 13th, 1987. And as a matter of fact did occur in service.
Because the record of my 1987 suicide attempt was in the possession of the AOJ at the time of the 1995 denial and that it's evidentiary relevance, erroneously was not considered, gravely so, given that the context of both of the circumstances in 1994 and 1987 are nearly identical.
Therefore, it is abundantly clear that the correct facts, as they were known at the time, were not considered and consequently constitutes CUE as held in Russell v. Principi, 3 Vet. App. 310, 314 (1992) I ask that the DRO vacate the 1995 decision and that an appropriate rating be assigned to my mental disability (as characterized by the DVA) due to CUE.
While I feel as though I've made my case for CUE, I can't in good conscience ignore the idea that the DVA has repeatedly neglected my statement that I spent the last several months in the service in an ARMY psychiatric ward.
"Your service medical records are completely silent for any complaints, treatment or diagnosis of any chronic mental disability.
That's a fairly definitive statement. Your service medical records are completely silent. One assumes that the veracity of that statement would include all of my service records. Not just the ones that the DVA felt like requesting or that were on record or in my claims file, but instead ALL of my service medical records. If I did indeed spend the last 55 days spanning the time period from 21 August, 1987 to 15 October, 1987 as an inpatient on Ward 3A, Winn Army Hospital, then how could my service records be "completely silent"? The simple answer is that they weren't completely silent.
I did spend the last 55 days in an Army Psych ward. That's a fact. I was there. So then why weren't the records of record? I honestly don't know. But they must, and in fact do exist.
I would have thought that an adjudicating officer would have said to himself, gee here's this guy claiming that he spent his last days in service in a psych ward, but we don't have any record of it. Wow, you know I'm a professional, and as such, I know that psychiatric medical records aren't always kept with other medical records so maybe I should fully and sympathetically develop the veteran's claim to its optimum before making a decision on its merits, you know as has congress mandated( (H.R. Rep. No. 100-963, at 13 (1988)). Because to do otherwise might just also be considered CUE.
Finally, I assert that I made an informal claim for service connection for depression on 12/06/1991 (attached as exhibit C) which has neither been developed nor adjudicated, or in fact acknowledged. Therefore I demand an immediate DRO review and a DRO hearing to consider the merits of my claims.
---thanks again hadit community for our consideration....and for the record, i was only joking when i said i would only appreciate constructive comments....well mostly joking...