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

[hurryupnwait]

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?

Diagnosis by the Othopedist for my discharge exam dated 25 October 1972.

Spondylolisis Grade 1 Spondylolisthesis S1 on S2 Severely symptomatic

Sciatica of 3-4 months duration

Unfit for retention

[Jay Johnson]

What causes spondylolisthesis?

There are six types of spondylolisthesis, the most common are due to aging or a the bony defect described above.

Degenerative Spondylolisthesis

Degenerative spondylolisthesis is by far the most common cause of spinal segments slipping on top of eachother. Over time, aging causes changes to the tissues of the body, including the bones, joints, and ligaments that hold the vertebral column together.

Isthmic Spondylolisthesis

Isthmic spondylolisthesis is due to a specific bony defect in the spine called spondylolysis. Spondylolysis is a defect in a specific region called the pars interarticularis. A pars defect is most commonly the result of repetitive microtrauma during childhood. Some sports are thought to make children more susceptible to developing spondylolysis, including gymnastics, diving, and football.

As stated previously, spondylolysis is the word used to describe the problem in the bone of the vertebrae. Spodylolysis is not the slippage of the vertebrae; again that is termed spondylolisthesis.

Other causes of spondylolisthesis include congenital (inborn) anomalies, trauma, tumors and bone diseases, and surgical procedures.

Quick Search gave me what I wrote above. This tells me two things:

1) Your condition is likely NOT congenital and

2) Even if it is congenital one would need to aggrivate the "defect" in order to become severely symptomatic.

This rater is wrong, period.

[Vike17]

hurryupnwait,

After going back and reading your prior post, reading a portion of the BVA remand (I couldn't find for some reason your actual BVA decsion), and piecing things to together, it appears you do not have a basis for a CUE.

Let me try to explain. The BVA remand states;

"The board notes that the RO originally denied service connection for residuals of a back disability by way of a rating decision dated in April 1973. In July 1973, the RO continued the denial based on the veteran s failure to appear for a VA examination (I do not recall this). In August 1973, the veteran responded to that notice and reported that he was willing to appear for an examination, which was then conducted in October 1973. In November 1973, the RO denied service connection for a back disability that was congenital or developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression. The claims folder does not reflect that the veteran was notified of this determination"

and you have stated in previuos post;

"Injured back three times in military, twice in 1971 and once in 1972. Could not find it in SMR's but have other proof; letter from CO, prescriptions, medical opinion from private Orthopedist 3 days after the last injury etc...Medically discharged for back condition 12/72 Filed claim 1973: denied because not in SMR's...."

So, your claim was first denied in April of 1973 apparently based on no record of any back condition within the SMR's. Then you appealed (maybe making the VA aware of the documents you noted in your other post; i.e. letter from your CO and doctor while in the service ect...)and three months later the VA further denied the claim because you never showed up for the exam. Then in Oct. 1973 you were re-scheduled and went to the exam and the examiner subsequently opined that your back condition was congenital or developmental in origin. The VA then denied the claim on the basis of the medical examiners opinion at the time that your back condition was "congenital or developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression"

Now since you did not appeal that decision within the one year of the decision, the rating has become final. The issue of possibly not being notified of VA's decision back in Nov. 1973, I will cover later in this post!

The resaon why you do not have a CUE claim is simply because, even if the medical opinion was inaccurate when it stated your back was congenital or developmental in origin, the accuracy of any medical records at the time of the decision is not a basis for a CUE. The records may have been inaccurate, but the rater based his decision on that record at the time, therefore, not a CUE.

Now as far as you not receiving the apparent rating decision of Nov. 1973, it is hard to tell if you could re-open the claim with "new and Material" evidence back to then. The reason why I say this is because the BVA is considering this as an "abandoned claim" under §3.158(a). This gives me reason to suspect that, for example, you moved and didn't let VA know your new address. It would be one thing if VA actually dropped the ball and didn't send you the rating decision to your new address after you notified them of the change in Nov. 1973, but if you didn't notify VA of any change at all, they would have know way of telling were you were. So, if this the case, your effective date would be the date of your re-opening with "new and Material" evidence. If this isn't the deal at all and you did notify VA of any change and they sent it to the wrong address or whatever the case may have been, then the VA dropped the ball and you should be able to re-open the claim effective back to 1973.

Since we have now determined what is what, you need to re-open your claim (regradless of the effective date) with "new and Material" evidence. This means you need to submit "new" evidence, which is evidence the VA did not have in their possession at the time of the prior decision AND "Material"

evidence which is evidence that weighs directly on the reason why the claim was denied. In short, you need some type of evidence that shows your back condition is NOT congenital or developmental in origin, AND that your military service made the condition worse beyond "natural progression." This evidence, I would suggest, be in the form of a very strong IMO opining as such.

Jay,

"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"

See §3.303(a),(:P, and © for the chronic "thing." Furthermore, in hurryupnwait's case, it appears this has been established by medical evidence and wasn't made worse by his military service. Granted, these medical records may be inaccurate, but that is not a basis for CUE.

"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"

VA compensates for the residulas of any disability or disease, not merely for the condition or diagnosis itself. As far as Cancer is concerned, this is just how liberal VA laws and regulations are. The service may not have actually caused the cancer However, is some cases it actully does such as AO exposure), but since the veteran happened to be in the service when they were diagnosed with it constitutes service-connection.

Vike 17

Edited May 10, 2007 by Vike17

[hurryupnwait]

hurryupnwait,

After going back and reading your prior post, reading a portion of the BVA remand (I couldn't find for some reason your actual BVA decsion), and piecing things to together, it appears you do not have a basis for a CUE.

Let me try to explain. The BVA remand states;

"The board notes that the RO originally denied service connection for residuals of a back disability by way of a rating decision dated in April 1973. In July 1973, the RO continued the denial based on the veteran s failure to appear for a VA examination (I do not recall this). In August 1973, the veteran responded to that notice and reported that he was willing to appear for an examination, which was then conducted in October 1973. In November 1973, the RO denied service connection for a back disability that was congenital or developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression. The claims folder does not reflect that the veteran was notified of this determination"

and you have stated in previuos post;

"Injured back three times in military, twice in 1971 and once in 1972. Could not find it in SMR's but have other proof; letter from CO, prescriptions, medical opinion from private Orthopedist 3 days after the last injury etc...Medically discharged for back condition 12/72 Filed claim 1973: denied because not in SMR's...."

So, your claim was first denied in April of 1973 apparently based on no record of any back condition within the SMR's. Then you appealed I did not appeal, unless calling them to say I can go to an exam is an appeal.(maybe making the VA aware of the documents you noted in your other post; i.e. letter from your CO and doctor while in the service ect...)and three months later the VA further denied the claim because you never showed up for the exam. Then in Oct. 1973 you were re-scheduled and went to the exam and the examiner subsequently opined that your back condition was congenital or developmental in origin. The VA then denied the claim on the basis of the medical examiners opinion at the time that your back condition was "congenital or developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression"

Now since you did not appeal that decision within the one year of the decision, the rating has become final. The issue of possibly not being notified of VA's decision back in Nov. 1973, I will cover later in this post!

The resaon why you do not have a CUE claim is simply because, even if the medical opinion was inaccurate when it stated your back was congenital or developmental in origin, the accuracy of any medical records at the time of the decision is not a basis for a CUE. The records may have been inaccurate, but the rater based his decision on that record at the time, therefore, not a CUE.

Now as far as you not receiving the apparent rating decision of Nov. 1973, it is hard to tell if you could re-open the claim with "new and Material" evidence back to then. The reason why I say this is because the BVA is considering this as an "abandoned claim" under §3.158(a). This is the statement from the Board, "As a result, there is a question as to whether the initial claim was abandoned, and the board will therefore, consider the claim on a de novo basis. See 38 CFR 3.158(a) (2004)". they question whether the claim was abandoned.

This gives me reason to suspect that, for example, you moved and didn't let VA know your new address. I did not move. It would be one thing if VA actually dropped the ball and didn't send you the rating decision to your new address after you notified them of the change in Nov. 1973, but if you didn't notify VA of any change at all, they would have know way of telling were you were. So, if this the case, your effective date would be the date of your re-opening with "new and Material" evidence. If this isn't the deal at all and you did notify VA of any change and they sent it to the wrong address or whatever the case may have been, then the VA dropped the ball and you should be able to re-open the claim effective back to 1973. Furthermore, the BVA did not find the proper notice in my file, if it was delivered to the wrong address, then the VA would have it in the file as undeliverable or something similar. Also, my vet rep would have gotten a copy also and he would have called me.

Since we have now determined what is what, you need to re-open your claim (regradless of the effective date) with "new and Material" evidence. This means you need to submit "new" evidence, which is evidence the VA did not have in their possession at the time of the prior decision AND "Material"

evidence which is evidence that weighs directly on the reason why the claim was denied. In short, you need some type of evidence that shows your back condition is NOT congenital or developmental in origin, AND that your military service made the condition worse beyond "natural progression." This evidence, I would suggest, be in the form of a very strong IMO opining as such.

Jay,

"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"

See §3.303(a),(:P, and © for the chronic "thing." Furthermore, in hurryupnwait's case, it appears this has been established by medical evidence and wasn't made worse by his military service. Granted, these medical records may be inaccurate, but that is not a basis for CUE. Please note previous post concerning discharge exam diagnosis, mainly sciatica 3-4 month duration, I was injured in late July and this exam was done late October, 3 months

"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"

VA compensates for the residulas of any disability or disease, not merely for the condition or diagnosis itself. As far as Cancer is concerned, this is just how liberal VA laws and regulations are. The service may not have actually caused the cancer However, is some cases it actully does such as AO exposure), but since the veteran happened to be in the service when they were diagnosed with it constitutes service-connection.

Vike 17

Edited May 10, 2007 by hurryupnwait

[Vike17]

hurryupnwait,

"I did not appeal, unless calling them to say I can go to an exam is an appeal"

According to the VA there was a reason why they revisted your back claim from the April 1973 rating three months later, and the only reason why they would do so in this case to continue a denial, is if you appealed that decision. You said you do not remember having to go to a C&P exam, so maybe you also do not remember submitting some form of a NOD. I do not mean this sarcastically by any means. Its just that 1973 was along time ago and things over time get "misplaced" in uur brains.

"This is the statement from the Board, "As a result, there is a question as to whether the initial claim was abandoned, and the board will therefore, consider the claim on a de novo basis. See 38 CFR 3.158(a) (2004)". they question whether the claim was abandoned"

Yes, that statement is correct from the BVA. §3.158 states;

"§3.158 Abandoned claims.

(a) General. Except as provided in §3.652 of this part, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. 1805 based on such evidence shall commence not earlier than the date of filing the new claim. (Authority: 38 U.S.C. 501(a))"

Obviuosly if the BVA is considering this regulation, then somewhere along the claims path, you didn't respond to an inquiry from VA or something of that nature. At this point it's hard to tell because I'm unable to find the full BVA document.

"Please note previous post concerning discharge exam diagnosis, mainly sciatica 3-4 month duration, I was injured in late July and this exam was done late October, 3 months"

The diagnosis on the exam discharge is irrelavent because it shows what symptoms you had, not where they originated. Also even if the exit exam did state it was due to an accident and was not cogenital in nature, this would be a difference of an opinion and to resolve this would be a judgmental call on the decision maker, which is also not a basis for a CUE.

Like I said, the C&P made have been inaccurate as to the origin of your back disability, but accuracy of medical records ect.. is not a CUE.

Vike 17

[hurryupnwait]

hurryupnwait,

"I did not appeal, unless calling them to say I can go to an exam is an appeal"

According to the VA there was a reason why they revisted your back claim from the April 1973 rating three months later, and the only reason why they would do so in this case to continue a denial, is if you appealed that decision. You said you do not remember having to go to a C&P exam, so maybe you also do not remember submitting some form of a NOD. I do not mean this sarcastically by any means. Its just that 1973 was along time ago and things over time get "misplaced" in uur brains. I do not have a scanner to scan in the board letter, so here it is with my possible typos, You prolly read typo right.

"the Board notes that the RO continued denial based on the veteran's failure to appear for a VA examination. In August 1973, the veteran responded to that notice and reported that he was willing to appear for an examination, which was then conducted in October 1973. In November 1973, the RO denied service connection for a back disability that was congenital and developmental in origin, and determined that the episode of back pain while on active duty for training was not aggravated beyond the natural progression. The claims folder does not reflect that the veteran was notified of this determination" They do not mention if an NOD was in the file, nor do I recall signing one.

"This is the statement from the Board, "As a result, there is a question as to whether the initial claim was abandoned, and the board will therefore, consider the claim on a de novo basis. See 38 CFR 3.158(a) (2004)". they question whether the claim was abandoned"

Yes, that statement is correct from the BVA. §3.158 states;

"§3.158 Abandoned claims.

(a) General. Except as provided in §3.652 of this part, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. 1805 based on such evidence shall commence not earlier than the date of filing the new claim. (Authority: 38 U.S.C. 501(a))"

Obviuosly if the BVA is considering this regulation, then somewhere along the claims path, you didn't respond to an inquiry from VA or something of that nature. At this point it's hard to tell because I'm unable to find the full BVA document.

"Please note previous post concerning discharge exam diagnosis, mainly sciatica 3-4 month duration, I was injured in late July and this exam was done late October, 3 months"

The diagnosis on the exam discharge is irrelavent because it shows what symptoms you had, not where they originated. Also even if the exit exam did state it was due to an accident and was not cogenital in nature, this would be a difference of an opinion and to resolve this would be a judgmental call on the decision maker, which is also not a basis for a CUE.

Like I said, the C&P made have been inaccurate as to the origin of your back disability, but accuracy of medical records ect.. is not a CUE.

Vike 17

Edited May 10, 2007 by hurryupnwait