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,

I must applaud your work for veterans over the last couple of decades; regardless of my disagreeing with you, we're still on the same side. Don't forget that.

As for the particulars - The VA is MUCH like the military command structure; when it works, it works well, but when there's ONE bad apple, it can cause havoc to hundreds/thousands of veterans. As I stated in the other thread, if you were to take a claim and give it to every RO in the country I guarantee you would get dozens of different ratings. Whether it is bias on the rater's part, ignorance via lack of proper education on the law, or willful malice doesn't really matter; it all has the same net effect. But I digress...

As for my wife's claim - she would have been handled the same in most places, because the VA doesn't deal well with stuff that is out of the ordinary, which leads me to why I'm upset with your statements on this matter:

It's one thing to say, "your claim is weak in my opinion"; it's all together different to say that, "your claim isn't a CUE". One gives an honest opinion based on, what appears, to be a substantial knowledge base. The latter is dissuading a veteran from filing a claim which I think is a horrible thing to do.

CUE is anything but black and white and not even the VA knows how to properly apply it in most cases, so it is wise for anyone to at least attempt it to see what they get. In this particular case, the veteran's doctor *may* have made a diagnosis that "no reasonable mind" would agree with.....it's one thing to use discretion; it's another to say that a veteran isn't missing an arm that is clearly missing an arm. To claim that a condition is "congenital" there has to be some basis for such an opinion. The problem, in this case, is that we don't know, for sure, what that doctor based that decision off of, nor do we know, as the veteran has stated, whether or not there was clear evidence to the contrary.

Also, who cares whether or not a given claim has never been won before? The BVA sets precedent all the time and any case can be a precedent setting case, so never, ever discourage a veteran from pursuing ALL angles available to them. The worst the VA can say is NO, which is no worse than not filing at all.

I don't mean to be rude in any way, but several of the SOs I spoke to about my wife's case had decades of experience (which they threw in my face) and had done hundreds of PTSD related cases; yet they all told me that I was crazy for filing for A&A. The guy I called at the RO in philly had gone so far as to start yelling at me and said my wife was a "greedy whore".

Now, does that mean that everyone working for the VA is bad? Heck no, not by a long shot. But a lot of one's experience in the VA depends on your knowledge of the system and who you get on your side during your trip through said system. A few years ago, I was able to reach the head of psychology for the VA in Maryland (head of psych in the state) about my wife's problems, at that time, with suicidal ideology and that doctor made one phone call to Perry Point and they sent an ambulance (3 hrs) to get her, gave her presidential treatment and brought in special psychs JUST for her from 2-3hrs away. Would the same thing have happened had she just walked in? I don't know; but the VA CAN be quite good when properly motivated and/or when you meet "good" people.

As for CUE in general - It's not pointless to file a CUE during appeals because it puts another set of eyes on your claim (handled by different people at the RO) and the more people you can poke and prod the better. Also, CUE is a very grey area; the only thing we know, for sure, is that a CUE claim must be based on LAW, not opinion (though some opinions and laws mix, which is why CUE is so grey).

I will summarize what the director at the Seattle RO told me when I asked about CUE. He said, "A CUE is a matter of law; nothing more. If you want to file CUE for your wife you should". He went on to say that CUE was handled in a different department and was completely separate from her appeal. When I talked to the folks on "team 1" they said that anything that violates VA regulations is considered a CUE, but CUEs are very hard to prove and need to be very specific.

The above information, coupled with the regs on CUE, BVA decision, etc. have lead me to believe that FAR more is CUEable than what many believe. That doesn't mean you'll win your CUE, but it's far broader then many people realize. The problem is that there isn't a lot of precedent on the issue because many vets are discouraged from submitting CUEs.

Personally, I would tell EVERY vet that gets a negative rating to CUE their claims (along with appeals) if there's even something remotely resembling a broken regulation. This will help establish more precedent on the matter and give clearer regs on CUEs in general. There’s simply NO reason for them not to.

So, if your opinion is that his CUE claim would be a tough sell, so be it, but don’t tell him he doesn’t have a CUE when the VA cannot even properly assess what is and isn’t CUE. Try rereading those things you posted and think about them a bit further….if CUE is a violation of a regulation, than just about anything the VA does falls under those guidelines. If not, why have regulations in the first place? Did congress make those laws as loose guidelines for raters to interpret as they see fit? I’m thinking not so much…..

But, all of this is irrelevant; the only thing that matters is that this veteran *should* have gotten a SC 34 years ago and, for whatever reason, did not. Whether or not it was the RO’s fault really doesn’t matter…this veteran feels it was and he deserves our support. He needs to get his C-file and see what, exactly, was said and why and what information the RO had and when…neither of us should be telling him he doesn’t have a CUE claim without those very vital facts.

[Vike17]

Jay,

"Personally, I would tell EVERY vet that gets a negative rating to CUE their claims (along with appeals) if there's even something remotely resembling a broken regulation. This will help establish more precedent on the matter and give clearer regs on CUEs in general. There’s simply NO reason for them not to.

Then we shouldn't wonder why there is such a back, especially at the Appeals Team and the BVA!!

"It's one thing to say, "your claim is weak in my opinion"; it's all together different to say that, "your claim isn't a CUE". One gives an honest opinion based on, what appears, to be a substantial knowledge base. The latter is dissuading a veteran from filing a claim which I think is a horrible thing to do....The above information, coupled with the regs on CUE, BVA decision, etc. have lead me to believe that FAR more is CUEable than what many believe.

According to YOUR interpretation of a CUE, there proabably would be, but the actual interpretation of CUE is a rare kind of error (contrary to your opinion) and when a CUE does occur, most of the time they have something to do with an effective date or misapplication of the ratings table when the percentage of disability is at question! The vast majority of claims involve some type of "opinion" from a Doctor and/or judgment from the decision maker and these are, based on CAVA and CFR 38 ect... not a basis of a CUE!

"So, if your opinion is that his CUE claim would be a tough sell, so be it, but don’t tell him he doesn’t have a CUE when the VA cannot even properly assess what is and isn’t CUE. Try rereading those things you posted and think about them a bit further….if CUE is a violation of a regulation, than just about anything the VA does falls under those guidelines. If not, why have regulations in the first place? Did congress make those laws as loose guidelines for raters to interpret as they see fit? I’m thinking not so much….."

The VA knows exactly what a CUE. Otherwise, they wouldn't over turn a decision based on that! Yes, everything VA does falls under some type of law or regulation and the vast majority of claims are adjudicated according to the law. If you read most of the BVA and CAVA decisons that were decided differently on appeal than what the VA decided i.e. a denial of benefits being overturned in the veterans favor, they weren't done so because of a CUE or misapplication of the law or a regulation at the time of the orginal decision, they were decided differently because of an error in judgment or additional evidence was brought to light after the initial decision! Raters do NOT interpret the law, they are suppose to follow it. The VA has the OGC to interpret the law.

"...In this particular case, the veteran's doctor *may* have made a diagnosis that "no reasonable mind" would agree with.....it's one thing to use discretion; it's another to say that a veteran isn't missing an arm that is clearly missing an arm. To claim that a condition is "congenital" there has to be some basis for such an opinion. The problem, in this case, is that we don't know, for sure, what that doctor based that decision off of, nor do we know, as the veteran has stated, whether or not there was clear evidence to the contrary"

It doesn't matter what the doctor based his/her "opinion" on or not to state as medical fact. It is just that, an "opinion" and the rater needed to use his/her judgment as to what medical evidence had more weight. Like I have continiously said, that medical document may have been inaccuarte at that point in time, but a CUE revolves around the accuracy of the decison made on the evidence before the decision maker. In other words, the rater based his decision on the exam and and "opinion" the examiner provided.

Another thing to keep in mind is if there was some other medical evidence in the records at the time to the cotrary of the C&P examiners opinion, then this would invlove the judgment of the rater as to what weight to assign what report. The rater may have had 5 opinions stating that his back condition was caused by the injury and one opinion (the C&P examiner) stating it was cogential. The rater may have decided to assign more weight to the one opinion rather than the other five for a variuos number of reasons and subsequently deny the claim. This may have been an error in judgment, and maybe a bad error in judgment at that, but this does not constutue a CUE! Now, I suppose you're going to argue "what about the benefit of the doubt." This would come in to play if the decision maker decided to assigned an egual amount of weight to the evidence for the veteran and against the veteran. Again this is purely a judgmental call on the decision maker. again not a basis for a CUE!

"The BVA sets precedent all the time and any case can be a precedent setting case,..."

The BVA does not set precendence. Only cases at the CAVA does when a judge their determines as such. This is a prime example of your misunderstanding of the VA system and process.

You're so far out in left on your assumptions, I'm not going to even debate this anymore. If you want to give vetrans bad advise, go somewhere else and do so! And then when you give bad advise and the veteran follows it, and then they come back with another denial, you really shouldn't wonder why. But, you will and ultimately say "the VA is screwing the veteran purposely."

Vike 17

Edited May 11, 2007 by Vike17

[Jay Johnson]

At first, I thought you were just a bit overly presumptuous in your opinions, but now it's clear that you have issues with being questioned; just as many in the VA do , as well as, many SOs. I resend my former adulations to you, as you are nothing more than a stubborn know-it-all.

It's folks like you that tried to tell my wife that she couldn't have A&A...you're so full of yourself, and hateful towards those whom would question you, that you would actually tell a veteran not to make a claim based on your loose interpretation of a law to which you really have no concrete knowledge about (nor do I or, I'm guessing, anyone else here).

By the way, who the heck cares whether or not the VA is backed up? How horrible of an excuse is that? I don't care if they are backed up for the next 1000 years; a veteran should use EVERY opportunity to get what he/she DESERVES. The politicians need to hire more people to lower the case load; that's not a disabled veteran's responsibility.

I won a few cases on PTSD and was the first person to get A&A for PTSD in the Philadelphia RO, so, by your logic, that makes me an expert on all things PTSD and A&A, right? I’m speechless…..

[Jay Johnson]

Hurry,

I'm sorry my friend, but I'm done posting here again. These places always have their handful of members that run rough-shot over anyone who dares question their methods and I really don't care to deal with that nonsense.

I wish you the best in your case and please feel free to email me directly at jay_1699@hotmail.com.

P.S. - Please don't listen to anyone who tells you that you "have no claim" or "shouldn't file". They are haters and VA apologizers and they don't have veteran's best interests at heart.

G'luck,

Jason

To Tbird,

Vike is popular here and I know how the popularity game works, so feel free to ban the account. Thanks from trying to provide a good forum for veterans and god speed.

- Jason

[john999]

Jay

Stick around! No one has the final say here except T-Bird. We have two outstanding moderators Carlie and Pete. Vike has good information, but so do you. I don't believe for one minute that most vets get good decisions without a fight. I have had many illogical and contradictory decisions over the years. What I regret is not appealing decisions. All the VA can say is "NO". We have a difference of opinion and that is nothing new.

[Vike17]

Jay,

I don't have an issue with being questioned over a topic. Maybe you should look in the mirror, you'll probably find who has the probelm with being questioned on a subject. Onced questioned, I provided the specific answers and then you got all worked up because they weren't the answers you wanted to hear! It's not my interpretation of the law, it's the CAVA's interpretation!

Popularity has nothing to do with it. It's all about accurate information. Hell, I'm wiiling to put money on it that of the 1587 members here on this board, probably 9/10 of them despise me becasuse they somehow think I'm not on the veteran's side and that I'm the so-called hater and "VA apologizers" because some of the answers I provide. You can not imagine how much it pains me when I see a disabled veteran not receive their deserved benefits, so don't spew this crap that I don't have "veteran's best interests at heart." You tell that to the countless fellow veterans that I have helped over the years and the difference I made in their lives!

Vike 17

Edited May 11, 2007 by Vike17