Cue?

[hurryupnwait]

Clear and unmistakable Error

To VARO,

I am filing a CUE on the basis that there was misapplication and misrepresentation of the regulations in regards to the decision made on April 24, 1973. I was medically discharged in December 1972. This claim was filed one month after discharge. The VA did make a decision and denied the claim. It was not appealed by me. The basis for this CUE is as follows:

This is taken from the denial letter I received in April 1973 from the VARO. (Copy enclosed)

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

On my discharge exam it clearly states several back problems and then states unfit for retention. This is a clear and unmistakable error. (Copy enclosed). Since the adjucator mentioned the discharge exam in his letter, then he must have read it. That means that this evidence was in front of the adjucator at the time the rating decision was made.. Therefore, Bell v Derwinski 1992 would not apply in this case.

This is the beginning of my CUE letter. I plan on scanning the discharge exam into the letter and highlight the main issues.

I will also enclose several treatment records during service, but I can not show that they were even looked at because the denial letter is not very apecific.

Any comments

[Vike17]

hurryupnwait,

If that was the sole reason for denial of service-connection back in 1972-73, the you may have a CUE. However, keep in mind it has to undabatable to any neutral minded person that you had a chonic back condition while in service soley from the medical records that was in front of the decision maker in 1973. Does the ETS exam note something like "current past history of back pain," or "recurrent" back pain/problems. Or does it just note recent back problems? Do you see where I'm going with this? Determining if a chronic condition largely hinges on a judgment and any type of judgement cannot be the basis for a CUE.

Keep us posted on the CUE claim.

Vike 17

Edited May 9, 2007 by Vike17 (see edit history)

[hurryupnwait]

hurryupnwait,

If that was the sole reason for denial of service-connection back in 1972-73, the you may have a CUE. However, keep in mind it has to undabatable to any neutral minded person that you had a chonic back condition while in service soley from the medical records that was in front of the decision maker in 1973. Does the ETS exam note something like "current past history of back pain," or "recurrent" back pain/problems. Or does it just note recent back problems? Do you see where I'm going with this? Determining if a chronic condition largely hinges on a judgment and any type of judgement cannot be the basis for a CUE.

Keep us posted on the CUE claim.

Vike 17

Vike

I was discharged early for medical reasons. The discharge exam was ordered so they could determine whether I was fit for retention. I was not. On the discharge exam it clearly states "severely symptomatic". That was there sole reason for denial, the next sentence reads " no further action may be taken on your claim unless you submit evidence to show that the condition was incurred in or aggravated by your military service and that it still exits."

Here is the other records:

The folowing are the available records:

As advised, (see Letter from Commanding Officer), three days after my in- service back injury, dated 3 August 1972, my civilian orthopedic surgeon examined me and sent a letter to the post commander at Camp Roberts, CA describing my chief complaint, past history, physical findings and diagnosis with treatment. In another letter, dated 10 August 1972, he stated that I was not fit for military service, (copies enclosed). This would have been in the VA file at the time.

Form DA 2496, Request for Medical Treatment, dated 17 August 1972, should also have been in the VA files. (Copy enclosed).

Letter from Commanding Officer, requesting medical care, dated 17 September 1972, this letter gives a description of the when, where and how of the injury. This would have been in the VA files. (Copy enclosed)

Chronological Record of Medical Care, USAF Hospital, Edwards AFB, dated 26 September 1972. I was seen for the same back injury. This also would have been in the VA files. (Copy enclosed)

Clearly, these records should have been with the VA at the time of the 1973 claim. It seems they made a legal error in interpreting what evidence they had and it was to my detriment.

Edited May 9, 2007 by hurryupnwait (see edit history)

[Vike17]

hurryupnwait,

If those documents you listed were actually before the decision maker at the time of their decision in 1973, I would say give this CUE a shot. However, if these were not actually in your C-file and before the rater in 1973, they cannot be obtained now and considered for a CUE.

Vike 17

[hurryupnwait]

hurryupnwait,

If those documents you listed were actually before the decision maker at the time of their decision in 1973, I would say give this CUE a shot. However, if these were not actually in your C-file and before the rater in 1973, they cannot be obtained now and considered for a CUE.

Vike 17

[hurryupnwait]

hurryupnwait,

If those documents you listed were actually before the decision maker at the time of their decision in 1973, I would say give this CUE a shot. However, if these were not actually in your C-file and before the rater in 1973, they cannot be obtained now and considered for a CUE.

Vike 17

Can i get a copy of my c file from 1973?

[Jay Johnson]

He's got a good basis for a couple of CUEs, but it all depends on who had what and when. Although the VA is supposed to do everything it can to assist your claim, one cannot cite failure to assist as a reason for CUE. So, if the info was not available to the rater, at the time, you'll have a very uphill battle (still always worth a shot though...don't ever let anyone tell you that you shouldn't file a claim, CUE, appeal, etc).

Also, what did your discharge papers say, exactly? If you're medically discharged from the military how can that NOT be a service connection? This idea that the military needs to make your problem worse or cause your problem is moot if the problem occurred while on duty (regardless if the military caused it or not). People get compensation for arthritis, cancer, etc. all of which are clearly not "caused" by the military.

By the way, being that we have PM'd one-another a couple of times, I can say that your claim from the BVA is your strongest CUE possibility. With the BVA saying that they do not believe you were informed after the 1973 decision (thus, not given the right to appeal), it should be a solid case for reopening the case from the 1973 date. However, even if you do get the case reopened, it won't help if you can't prove, without a doubt, that you should have been awarded the SC at that time with that evidence. Just proving the VA wrong is not justification for a CUE; one must also show that they would stand to gain something by the mistake and simply reopening the case is not enough.

Basically, you have the evidence for a solid case, in my opinion, but the factors are intertwined and reliant upon what, exactly, that rater, in 1973, had in front of him/her at the time of the decision.