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Found 3 results

  1. Hello Defenders of freedom! I have a question pertaining to this denial for headaches. The decision letter is quoted below. 3. Service connection for headaches. "We may grant service connection for a disability which began in military service or was caused by some event or experience in service. Your STRs are negative for any treatment of or diagnosis of headaches. On your post-deployment exam in 2005 you denied any headaches. On separation, you denied any headaches. VA treatment records are negative for any treatment of or diagnosis of headaches. On VA exam, the examiner stated there was no evidence of any residuals of a traumatic brain injury. We have denied service connection for headaches because the evidence of record fails to show this disability was incurred in or caused by military service." From my understanding these 3 points must be overturned to successfully win a CUE case: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence 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 of the prior determination 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. @Berta, or veterans out here who have knowledge/experience, tell me what facts you think would be needed to prove this denial for headaches was an error?
  2. Hello ALL!... It's been a while since I've posted here. Nice changes to the web site. Anyway... In 1975, I enlisted in the Army. I went in with three Knowles pins, surgically implanted in my left hip, which was performed in the summer of 1970. Prior to enlistment, I had NO issues with this hip. I had full ROM (as this was also documented at AFEES), NO PAIN, ETC. During my time in basic training (while speed marching in sand one early morning), I hit a divot in the sand, and suffered a (what I believe was) a compression fx. It was extremely painful & I had dropped out of the ranks due to it. A visit that day to the dispensary, showed that, one surgical pin was protruding out into the joint space. This is the exact written statement made by the examining physician. He recommended that I be discharged. 8 months pass and my discharge orders are submitted, classifying me as "Medically Discharged" w/severance pay. Immediately afterwards, I applied for a rating with my local VARO and they schedule me for examinations to determine the extent of my disability. The VA doctors determine, with this exact wording... "Pins Working loose"... "Atrophy" "Avascular Necrosis" "Left Leg 1/2" shorter than right" (although this is NOT compensable, it contradicts what AFEES stipulated; that BOTH legs measured 37 inches) Back then, not knowing that I was entitled to a copy of my medical files, I had NO CLUE that I had all of these statements made by doctors. Anyway, the VARO rendered a decision in 1977, awarding me 10% (Coded w/5010-5003; SC 38USC 331 {AGG PTE}; 10% FROM 4/76; Res. of Fracture Left Hip w/Arthritis). There had been NO MENTION of the statements made by the examining physicians in the determination, regarding the above mentioned ailments, yet Title 38 awards a rating for each, except for "surgical pins". Not knowing anything about my condition, the laws or my entitlement to documents, I accepted the rating as verbatim and ASSumed this was honestly decided upon, by competent officials. I discovered years later that this is not the case... In 1977, I also had surgery to remove the pins, only to have an incompetent "Quack" botch the surgery (which led to my 2002 filing of an 1151 claim, then an FTCA Case in Fed. Court). In 2002, I managed to get copies of my entire file and pursued a CUE claim involving the "Under-rated claim" dating back to the original 1977 Clear & Unmistakable decision. After all, the raters failed at reviewing the entire write-up made by their own VA doctors. Even though I made multiple mentions in my constant filings, for some reason, it keeps getting swept under the carpet?! They are also referring to calling it "Residuals", as if it was already decided upon as a "Bundled Package". I DO know that this under-rating is TOLLING, being that it was never addressed in the 1977 decision. In effect, isn't it still an "Open Issue"? Tolling of Statutes of Limitations Law and Legal Definition Tolling of statutes of limitations refers to the situation when running of statutes of limitations is suspended. The U.S. Supreme Court has established a two-part test to determine whether a petitioner is entitled to equitable tolling of the statute of limitations. Generally, a litigant seeking equitable tolling of the statute of limitations bears the burden of establishing that: a. S/he has been pursuing his rights diligently; and b. some extraordinary circumstance stood in his way. [Pace v. DiGuglielmo, 544 U.S. 408, 418 (U.S. 2005)]. Since Discovery (2002) I have pursued this Under-rated claim diligently... AND (Some may question) An "Extraordinary Circumstance", such as my "Ignorance" in not knowing that I was entitled to copies of my entire file at the time along with my ignorance in knowing the laws (Title 38) at 19-20 years old, PLUS, My inability to research online (in 1976-77, there were NO computors or internet to research as we have today). In 2003-04, I found a case law, where as the BVA awarded a Veteran (I believe it was in 2002) with VERY SIMILAR ailments 60%. He to, had a "loosening of pins", "Asceptic Necrosis" & atrophy?! After a total hip replacement, the Veteran was downgraded from 60% to a 30% rating. After a hearing, the VA awarded the Veteran with a 50% rating. This is the heading of the Case Law: IF permissible, does anyone know the Plaintiff/Claimant in the Court Case? OR Is this hidden due to "Privacy Act"? Citation Nr: 0306080 Decision Date: 03/31/03 Archive Date: 04/08/03 DOCKET NO. 95-42 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of fracture of the right femoral head, evaluated as 60 percent disabling from June 1994 through May 17, 2000. 2. Entitlement to an increased rating for residuals of fracture of the right femoral head, status post right total hip replacement, evaluated as 60 percent disabling from July 2001 through March 2002 and 30 percent disabling since April 1, 2002, to include the issue of whether the rating reduction to 30 percent was proper. 3. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WHY is my claim different? Even though the bundling of ailments in THIS case is used (Residuals), what makes my case different? The Bottom Line... Is there enough info here to determine if I have a "CUE" claim? Should the VARO awarded me a higher rating in their 1977 decision as they did with the Case Law above? Thank You in Advance for your comments/opinions on this matter! Bruce M.
  3. Hello fellow Vets, So today I began my journey of filing my first CUE claim with the help of my VSO. I've been rated appropriately for my Migraines (50%) and my lower back condition with sciatica to left and right leg (Combined 40%) over the past several months. The goal now is that I'm challenging the effective date for these conditions to my separation date of 6/30/2014. I was originally denied my back claim and rated 0% for Migraines. I've proven my back claim was service connected and wrongfully initially denied. The challenge will be getting my Migraine effective date changed but I'm hopeful. The VA has pushed back every step of the way! I'm going to do my best to keep a timeline of events and keep everyone posted with my claims progress. Wish me luck!!! 05/09- CUE claim filed 5/18- Preparation for Decision
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