Would This Be A Cue?

[hurryupnwait]

This is taken from a denial letter I received in April 1973 from the VARO.

"Available records do not show that you received treatment for this condition during service nor was it recorded in the report of your examination at discharge."

Three days after my back injury my civilian orthopedic surgeon sent a letter to the post commander describing my chief complaint, past history, physical findings and diagnosis with treatment. He also stated that I was unfit for military service.

On my discharge exam it clearly states several back problems and then states unfit for retention.

In November of 1973 the VA sent me for a physical exam. They never sent me any further correspondence about the claim or the results of the exam.

In 1992, I requested my medical records from the VA and found the exam results from November 1973 along with my discharge exam.

It appears that no one at VA may have looked at my discharge exam or any other records.

There were no records available to them because they never requested them.

Thanks again for your help

Paul

[Ricky]

From what you posted I do not see a CUE as they would just claim the records were not there. However, you did state that after the Nov 73 exam you never heard another word. Based upon this statement the claim may still be open. What do you mean you never heard another word? Was the Apr 73 denial appealed? If so is this what you were talking about?

[Berta]

From what you posted I do not see a CUE as they would just claim the records were not there. However, you did state that after the Nov 73 exam you never heard another word. Based upon this statement the claim may still be open. What do you mean you never heard another word? Was the Apr 73 denial appealed? If so is this what you were talking about?

I dont see CUE either unless it was denied- and then maybe-hard to say-

If the VA had your address all that time and failed to formally decide this claim-I would think it is still an open claim.

Did you move and did other ROs have jurisdiction over this claim?

Do you still have a copy of the actual claim?

If so I would ask them to decide it.

[hurryupnwait]

This post would prolly clear up a few things

need help please

[Berta]

I see what you mean now-

The VA did make a decision and denied the claim-

it seems they made legal error in interpreting what evidence they had.

"Three days after my back injury my civilian orthopedic surgeon sent a letter to the post commander describing my chief complaint, past history, physical findings and diagnosis with treatment. He also stated that I was unfit for military service.

On my discharge exam it clearly states several back problems and then states unfit for retention."

Clearly this should have been in the records that VA had at time of the 1973 claim.

Was that claim filed within one year after discharge?

Did your DD 214 reflect "unfit for retention"?

What kind of discharge did you get?

Regardless- If the VA had this info in 1973-then the decision had to contain a CUE-a legal error-

I suggest you file a CUE claim and state the date of the 1973 denied decisioncontained a legal error to your detriment.

I suggest that you access and print out Section 20.1403 of 38 CFR and remind the VA that what applies to the BVA equally applies to the RO.

Also you can refer to Myler V. Derwinski and clearly state that Myler supports your position that the VA committed a CUE by their failure to assign a disability rating when that was required by the clear and undisputable evidence they had-

and then list the evidence you mentioned- Discharge cert, DD 214 with any codes etc that showed unfit for retention, and the letter you mentioned.

I have posted Myler here before- this unusual claim reaped 43 years of retro for Mr. Myler.

And add this citation:

§4.3 Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 F R 42535, Sept. 15, 1975]

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

§4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

§4.9 Congenital or developmental defects.

Mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes.

[41 FR 11292, Mar. 18, 1976]

-------------

You dont need 4.7 or 4.9 but I posted them because they and 4.6 had the same Fed Reg date.

I do not foresee any denovo review getting any significant retro they way a successful CUE claim could here-

worth trying this----but it pays to study Myler and all the CUE info here at hadit-

Your CUE needs to be based on the VA's failure to assign a rating based on the evidence they had that was indisputable and undebatable.

I have a CUE similiar to what yours will be:

A VACO medical review determined that my husband had heart disease malpracticed on by VA to the extent (100%) that it caused his death-

they failed to ever diagnosis or treat it-

(I got wrongful death award)

However in the decisions that granted not only his accrued benefits but my DIC under 1151 they failed to even mention it.

They also failed to award SMC under Sec 1151.

The heart disease CUE claim is due to their legal error to fail to assign a rating under Sec 1151 or even NSC.

This then triggers the other CUE to award SMC which they said he was not eligible for and to award SMC at a much higher level than "S"-which I think they would try to offer me- but I wont accept.

The VA cannot fail to assign a proper rating on evidence they have.

I think this applies to you and to me regarding CUE-

does this make sense to you?

Edited May 4, 2007 by Berta

[hurryupnwait]

I see what you mean now-

The VA did make a decision and denied the claim-

it seems they made legal error in interpreting what evidence they had.

"Three days after my back injury my civilian orthopedic surgeon sent a letter to the post commander describing my chief complaint, past history, physical findings and diagnosis with treatment. He also stated that I was unfit for military service.

On my discharge exam it clearly states several back problems and then states unfit for retention."

Clearly this should have been in the records that VA had at time of the 1973 claim.

Was that claim filed within one year after discharge? Yes, about one month later

Did your DD 214 reflect "unfit for retention"? No, it does not

What kind of discharge did you get? Reason for discharge: Medically disqualified Discharged 11 December 1972

Regardless- If the VA had this info in 1973-then the decision had to contain a CUE-a legal error-

I suggest you file a CUE claim and state the date of the 1973 denied decisioncontained a legal error to your detriment.

I suggest that you access and print out Section 20.1403 of 38 CFR and remind the VA that what applies to the BVA equally applies to the RO.

Also you can refer to Myler V. Derwinski and clearly state that Myler supports your position that the VA committed a CUE by their failure to assign a disability rating when that was required by the clear and undisputable evidence they had-

and then list the evidence you mentioned- Discharge cert, DD 214 with any codes etc that showed unfit for retention, and the letter you mentioned.

I have posted Myler here before- this unusual claim reaped 43 years of retro for Mr. Myler.

And add this citation:

§4.3 Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 F R 42535, Sept. 15, 1975]

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

§4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

§4.9 Congenital or developmental defects.

Mere congenital or developmental defects, absent, displaced or supernumerary parts, refractive error of the eye, personality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes.

[41 FR 11292, Mar. 18, 1976]

-------------

You dont need 4.7 or 4.9 but I posted them because they and 4.6 had the same Fed Reg date.

I do not foresee any denovo review getting any significant retro they way a successful CUE claim could here-

worth trying this----but it pays to study Myler and all the CUE info here at hadit- I ll try to find these codes and cases

Your CUE needs to be based on the VA's failure to assign a rating based on the evidence they had that was indisputable and undebatable.

I have a CUE similiar to what yours will be: My appealed claim is at the AMC

in overflow waitng to go back to the ratings board. Should I wait to get sc for my back then persue the CUE claim or do it now.

A VACO medical review determined that my husband had heart disease malpracticed on by VA to the extent (100%) that it caused his death-

they failed to ever diagnosis or treat it-

(I got wrongful death award)

However in the decisions that granted not only his accrued benefits but my DIC under 1151 they failed to even mention it.

They also failed to award SMC under Sec 1151.

The heart disease CUE claim is due to their legal error to fail to assign a rating under Sec 1151 or even NSC.

This then triggers the other CUE to award SMC which they said he was not eligible for and to award SMC at a much higher level than "S"-which I think they would try to offer me- but I wont accept.

The VA cannot fail to assign a proper rating on evidence they have.

I think this applies to you and to me regarding CUE-

does this make sense to you?

I think I ll have to reread the abbreviation meaning section of hadit to get a better understanding. I m sorry about the lost of your husband.

Thanks for your help?

Edited May 4, 2007 by hurryupnwait

[Josephine]

 Medically disqualified Discharged 11 December 1972

Why did you not receive disability benefits at the time of your discharge?

Josephine