Cue

[nomochow]

Veterans and friends of HADIT,

I was diagnosed with a disease in service and had surgery. my SMR are negative for any conditions prior to service. I was denied SC at first attempt then granted SC on second attempt for same condition. Is the a basis for CUE that refers to the presumption of soundness or other statute?

Thanks for your input

[free_spirit_etc]

Do you think they made a legal error? As far as presumption of soundness - did they try to say you had the condition before the service? What reasons did they give for denying it the first time?

Free

Veterans and friends of HADIT,

I was diagnosed with a disease in service and had surgery. my SMR are negative for any conditions prior to service. I was denied SC at first attempt then granted SC on second attempt for same condition. Is the a basis for CUE that refers to the presumption of soundness or other statute?

Thanks for your input

[Berta]

"I was denied SC at first attempt then granted SC on second attempt for same condition"

If the first "attempt" is now a decision that is final, there could possibly be basis for CUE-

If you instead appealed that initial decision within the year NOD time and then were subsequently award due to the appeal-arising from the original claim- there would be no basis for CUE.

If you were awarded -but with an EED that did not go back to the original filing date-and you continuously prosecuted the same claim to the award-you could NOD the award decision (if you have time left) and tell them your EED should be the date you filed the claim.

It is possible that the medical evidence at time of original app did not warrant a SC rating but the disability progressed to a ratable degree as you pursued the claim.

There is considerable info here on CUE claims under search.

Edited August 3, 2007 by Berta

[nomochow]

Free,

they said "the evidence in its entirety" also they claim I made too many conflicting statements about when problems started.thats it. However, the evidence shows no issues on entering service and no documented statements I made claiming something existed prior to entry. I thought the evidence of record ruled. the bottom line (I believe) is the presumption of soundness was not rebutted and a chronic condition in service was documented...otherwise how can anyone become SC for the same condition that was denied? am I missing something here? what happened to looking at the entrance physical? If I am missing the point, let me know.

nomochow

[nomochow]

Berta,

"If the first "attempt" is now a decision that is final, there could possibly be basis for CUE"

thats correct-the decision is final. and their new and material evidence to reopen is pain-according to the documentation. and the idea the condition wasn't rateable cant work due to "medical accident" during surgery and surgical scars. I have read plenty on CUE, however I want the (priceless) HADIT expert opinion also. What could I be missing here?

nomochow

[john999]

File a CUE claim. All the VA can do is deny it and then you appeal. Speculation will get you no where. If their is money involved you will probably get a resounding "Denied" on the first attempt at your VARO.

[free_spirit_etc]

That almost sounds like they denied it initally because they found no "current" disability. And then granted it when the pain increased. If that is the case - it could be a CUE -in that it should have been SC as a nonratable condition the first time - but they could also say that it didn't "manifestly change the outcome of the decision" as you wouldn't have gotten PAID for the SC - the SC was granted - and you got paid when the condition was "ratable." (i.e. they could admit the condition should have been granted SC the first time - but that you didn't lose anything by it not being granted.)

Just my thought -- based on VERY limited information -- so I might be way off base here.

Free

Berta,

"If the first "attempt" is now a decision that is final, there could possibly be basis for CUE"

thats correct-the decision is final. and their new and material evidence to reopen is pain-according to the documentation. and the idea the condition wasn't rateable cant work due to "medical accident" during surgery and surgical scars. I have read plenty on CUE, however I want the (priceless) HADIT expert opinion also. What could I be missing here?

nomochow