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

[Jay Johnson]

Vike,

You say accuracy is not CUE, but that's just not true in this case. CUEs are won all the time when doctors misdiagnose someone or grossly misinterpret the facts in the case. To establish his disorder as congenital (as per my research on his affliction) would mean that the doctor would HAVE to find some sort of boney malformation that was present BEFORE service. This is IMPOSSIBLE to do after the fact. His diagnosis is a very common one and is, essentially, just fancy terminology for a "slipped disc", which is caused 99.9999999% of the time by physical stress on the lower back.

Also, a malformation in the back (congenital defect) cannot, in and of itself, cause an injury. Some sort of triggering event must accompany it in order to cause the slippage of the disc. Age related issues can cause the injury, but that is associated with the elderly and decalcification of the bones later in life....a healthy 20something year old should not have discs slipping "just because".

So, one may not be able to CUE a matter of opinion, but they can CUE something that no reasonable mind could argue and, if presented correctly, there is NO WAY any doctor on this planet is going to argue that his condition was not caused, or at least aggravated, by military service.

Either way, he needs to look at his C-file to se what, exactly, the RO had in 1973. If any of the information he claim to have is in there, it's an open and shut case in my opinion.

I don't mean to sound rude here, but to even hint that a slipped disc is a congenital defect in which his extremely physical job in the military played NO role is completely absurd. I'm willing to bet the farm that this doctor did not note the "boney defect" required to even suggest an inborn disorder. My guess is that medicine in the 1970's was junk and this doctor was clueless.

My god, lower back injuries have to be the most scrutinized injuries on the planet. It’s the number 1 cause of civilian injury claims world wide and the research on it is incredibly extensive. If every time someone slipped a disc an insurance company/employer could say it was congenital, they would, and I’m sure they’ve spent billions trying to come to that conclusion over the years.

[Vike17]

Jay,

You have many misconceptions of what CUE actually is. Before I go and write a novel on it here, I suggest you read the self help guide I had written for Tbird. It's oinned at the top of this forum. Look under the section "Clear and Unmistakable Error" and maybe you'll undestand what a CUE really is and isn't!

Without fully understanding what constitues a CUE and how it is applied, you shouldn't post misleading material!

Vike 17

[Cavman]

Glad to see you back Vike 17. You are needed.

Cavman

[Jay Johnson]

Vike,

So, this is why I stopped posting here. Neither you, nor myself, are experts on this matter. We do not have degrees in VA litigation, nor do we have any knowledge that would grant us an absolute monopoly on this, or any other, VA matter. In your write up you say a claim must have exhausted all appeals to be CUEd....this is FALSE. A CUE calls for a claim to be "final" not "finally adjudicated" (there's a BIG difference). The RO accepts CUEs while a claim is STILL in appeals for god's sake.

Now, this isn't to say that a CUE isn't a tricky beast; it is. But, in short, it is nothing more than an argument of law and law can be anything pertaining to title 38. If anything, the laws on CUE are still being written as we speak, because I'm not even sure the VA properly understands how to use it at this point and I'm willing to bet that CUE, 10 years from now, will be much different than it is today.

I can't help but remember the last vet's forum I was on (and booted from). I got into a nice long debate with the board admin over whether or not my wife should apply for A&A with, only, PTSD and he, and several others, proceeded to brow beat me and ban my ISP for even claiming such a ridiculous notion....my wife was granted A&A for P&T 1 month later. This was against the "all knowing" internet veteran guy's opinion...it was against EVERY vet agency in the state of Delaware's opinion....it was AGAINST the advice of the folks I spoke to at the 800#...it was against EVERYONE I had ever spoken to that ever had anything to do with the VA. Yet, I had a 1994 BVA decision saying a veteran could, indeed, get A&A for PTSD with the spouse being the primary caretaker (which I attached to my claim).

So, just because someone says something here, or anywhere else, doesn't make it so. I have gone over CUE myself before on this forum and even highlighted the regs pertaining to "final" and "finally adjudicated (to which it doesn't say anywhere in the CUE information I've seen), yet I was beaten by those here last time and told I was wrong; despite the RO telling me to file CUE while the claim was still in appeals (and this was the acting DIRECTOR of the Seattle RO, not some nobody who answers phones).

Voice your opinion on the matter and state your point...god knows you seem very knowledgeable on this, and many other topics, but that does not give you license to supersede my opinions, nor act as the final authority on this topic.

Best of luck to you,

- Jason

[Vike17]

Jay,

Your interpretation of CUE is simply wrong! I've been doing veterans claims for almost 20 years now and in that time span I've won a few CUE claims. If you would go back and research this topic, you would also notice in previuos post that I stated that a claimant can contend a CUE was made when the claim is within the one years appeal period; however, it becoomes a moot point because if there is a CUE, the VA can correct it anyways without using the CUE to go back and change that decsion back to the original effective date. Last year I had a claim where I think there was four CUE's within the original rating decision. I wrote the NOD highlighting these and about eight months later all of them were ackowledged by the DRO and corrected! A CUE is the means by which VA can go back and correct a decsion that has become 'final.' Nothing more, mothing less!

Memebers like you that come here and and continiuosly "brow beat" of how bad the system has "screwed" the veteran is one of the reasons why I left for that short priod of time. For the most part the veteran "thinks' they got the preverbial "screwing' from VA when it isn't the case. More often than not it was a matter of what the veteran thought was the way it should have been done and not how it is actually done according to the law. Your interpretation of CUE is a prime example of this! From what I can see here on Hadit and other message boards I post on, there have only been a couple of cases where the veteran did not or hasn't yet received what they deserve. The majority of the cases have just been a matter of explaining why a certain thing was done the way it was.

Since I've been helping veterans with claim over the past 15 years going on 20, I have not had one claim come back that was denied when I did the initial work-up of it. Here in my home office I've got three large filing cabinets full of "claims folders," so I think this speaks for itself. The veterans that come to me that have been previuosly denied their claims from either having a shoddy SO do it for them or they did it on their own without knowing what is what, I have also for the most part un-f!@#ed those too and have in the mean time been granted. In the catogory of these claims, I think I have about 10 pending a variuos Appeals Team at different Regional Offices (one of them is a CUE claim).

Now, I do not claim to know everything about the VA claims process by any stretch of the imagination. The USC & CFR 38 and all of the precedential opinions out there are vast, but 90% of all the topics here on Hadit or other boards are within the "normal" areas of VA claims adjudication and can be answered accordingly.

Your wifes case, keep in mind, is a very out of the ordinary claim and isn't handled every day at the VA. They simply just don't see them alot in the whole claims process. Now does this mean the VA was right in giving you possibly wrong information? No, it isn't right and I'm glad your wife received what she deserved, but make accusations that state this is the normal prcatice and is wide spread within VA simply is misleading!

Many of your accusations and so forth about VA and their average employees simply isn't correct, and when i see something like this, I'll certainly call you on it!

Vike 17

P.S. Just so everyone is clear on what a CUE entails, below I've cut and pasted an except from what I had written in the self help guide for Tbird!

Clear and Unmistakable Errors (CUE):

The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.

Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurate portrayed the current overall limited range of motion. CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim

Edited May 11, 2007 by Vike17

[Stretch]

stretch of the imagination. I resemble that.

Hurryup,

My information from 1973 was in my c-file, even the GI bill payments. All of my decisions prior, to my last decision in 1985, were not in my c-file. I heard on hadit years ago that they only keep the last decision, I don't know how true this is or not. You can check it out for us.. Only my 1985 decision was in C-file. Ask the VSR when you are there.