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,

To get a copy of your C-file just write your RO a short letter requesting a complete copy of it. Once you receive the C-file, you can go through it and sort out the material that was in it before and after the 1973 decision.

Could you also post your docket number from your BVA decision?

Jay,

"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)"

Not really true. See §4.9 and keep in mind that just because a veteran injured himself, started to have problems, or contracted some disease while on active duty doesn't mean there is "chronic" residuals thereafter to warrant service-connected compensation.

Also, in hurryupnwait's case, the "Duty to Assist" is a non factor because his claim hinges on laws and rules and regulations of 1973. The VCAA wasn't a factor until 2000. Even the "well-grounded" stuff may not have been a factor back in 1973.

Vike 17

Edited May 9, 2007 by Vike17

[Pete53]

Hurry:

You have a tremendous investment in a CUE going this far back. If it was my claim I would go to the VARO and ask to see my C File. You will know for sure if you go to the back of the file and look.

Good Luck I think that you have a great CUE Claim.

My C File had everything except my personnel records from 1968 to 1991.

[hurryupnwait]

hurryupnwait,

To get a copy of your C-file just write your RO a short letter requesting a complete copy of it. Once you receive the C-file, you can go through it and sort out the material that was in it before and after the 1973 decision.

Could you also post your docket number from your BVA decision? 09-27524

Jay,

"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)"

Not really true. See §4.9 and keep in mind that just because a veteran injured himself, started to have problems, or contracted some disease while on active duty doesn't mean there is "chronic" residuals thereafter to warrant service-connected compensation.

Also, in hurryupnwait's case, the "Duty to Assist" is a non factor because his claim hinges on laws and rules and regulations of 1973. The VCAA wasn't a factor until 2000. Even the "well-grounded" stuff may not have been a factor back in 1973.

Vike 17

[hurryupnwait]

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.

I

So Jay, you are saying that I may have two CUE claims, one with the VARO and the other with BVA for no notice of apellate rights from 1973

[Jay Johnson]

Jay,

"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)"

Not really true. See §4.9 and keep in mind that just because a veteran injured himself, started to have problems, or contracted some disease while on active duty doesn't mean there is "chronic" residuals thereafter to warrant service-connected compensation.

Also, in hurryupnwait's case, the "Duty to Assist" is a non factor because his claim hinges on laws and rules and regulations of 1973. The VCAA wasn't a factor until 2000. Even the "well-grounded" stuff may not have been a factor back in 1973.

Vike 17

Vike,

I'm not quite sure where you're getting the "chronic" thing from. My understanding of 4.9 is that it deals with "congenital" issues, which have nothing to do with the duration of the disorder (could be acute with flaring or chronic). Congenital is a condition you are born with by definition; nothing more. In order for this rater to establish a finding under 4.9 he/she would have to first establish that the veteran was born with this condition AND that the military did not make it worse.

Although there are certain congenital back issues (spinal bifida comes to mind), I find it very hard to believe that he was born with the type of injury he has described in what he's written thus far. Also, I find it harder to believe that military service would have no negative impact on ANY spinal injury, be it congenital or otherwise.

As for chronic - I've seen veterans get compensation for cancers that are anything but chronic and the military certainly doesn't cause or agitate cancer....it's a purely genetic thing with ths possibility of some outside antigens.

Hurry,

What, exactly, is your back diagnosis again? Also, did the rater cite ANY information as to how he/she came to a conclusion that you were born with this disorder?

[Jay Johnson]

When writing a CUE you want to be VERY specific and stick to a single violation of a regulation. Once a topic is CUEd it cannot be revisited, so keep your arguments narrow. When I did my CUEs I did two of them separately because they were two separate issues dealing with two separate regulations. In your case, you have issues with how your case was handled in general (the congenital thing is terribly odd), which is more of an evidence question. The other is one of finality of your case from 1973 in which you were not properly notified of the ROs decision and, therefore, not afforded your appellate rights. I'm not sure you can CUE directly to the BVA, but the BVA's finding that their was "no evidence that the veteran was made aware of the october 1973 decision" is a very strong case for reopening your case from that date. To me, those are two separate issues.

One is that no reasonable mind could NOT have found a service connection based on the evidence on hand and the fact that you were, essentially, discharged for that very medical condition and have several records to prove it.

The other is a matter of not being properly alerted to the ROs findings and, thus, not afforded due process to challenge the findings.

Either is a good case for a CUE, but I think the latter, with the BVAs opinion on the matter, is the stronger of the two.