Amended Cue Claim

[Guest fla_viking]

Dear Fellow Veterans & Friends

I made an addition to my CUE motioin. I hope I interpit the law and the facts of my claim as being one of the same.

CUE Claim

INTORDUCTION

In 1977 I went into Fort Snelling VA and had psych test done. That MMPI showed the same language and psych disablity as the 1980 report which showed schizophrenia. In 1999 the BVA docket $ 97-07-510 found: "These records include March 27 1980 MMPI report whcih was conducted during the veterans hospitalization at a VA medical facility begining in March 1980. This report was not of the record at the time the previous board denial----This suggested diagnosis for the MMPI profile was of paranoid schizophrenia=== The evidence received since the decimber 1982 board decision includes medical records not previously associated wht the claims folder which dentd to show that a psychiatric disorder is related to active duty"

The below CFR regulation defines what constitutes a CUE.

38 CFR Sec 20.1403. "Generally either the correct facts as they were known at the time were not before the board or the statutory and regulatory provisions extent at the time were incorrectly appplied"

Please show me how the above BVA findings and the CFR dont compliment each other into a finding of CUE. This failure of the VA to obtain its own MMPI reports subjected me to 22 years of living basically on $400 a month. Upon which I spent from March 1980 to March 1989 in a VA hospital and veterans home for my service connected illlness. Even back in 1977 the Dr wrote. "July 1977 psycholigical report indicat4es that individuals with the veterans profile may develop schizophrenia"

That is the additions I made to my CUE claim. Is it clear how the CFR and the findings by the BVA makes this a CUE claim?

If any of you know how to re word this to me more clear. I am open for suggestions. thanks

Terry Higgins

[Guest Berta]

Terry-I have been going over your claim today-

I think the key issue might be quite similiar to

Motley V Principi- (CAVC 02-1194)

Motley claimed CUE in past BVA decision in CAVC docket 02-1194.

He claimed that his schizophrenia was manifested in service and also within one year of service (presumptive)

yet that the BVA failed to consider

38 USC 1112 , also direct service connection and , also failed to discuss

medical and lay evidence in his past claim.

It seems his claims go back to Dec 1995.

This was remanded by the Court , and a 2002 BVA decision was vacated.http://webisys.vetapp.gov/isysquery/irlf3c5/1/doc

It seems to me that the veteran invoked the lack of application of 38 USC 1112 as a strong point which I feel that you could use too-

Page 6 shows what I mean:

"The record reflects that Mr. Motley provided to the RO and the Board

lay evidence, specifically his testimony and lay statements from family members, that he experienced symptoms of schizophrenia within the presumption period under section 1112. Moreover, he advised VA that he had been treated during service for migraine headaches, hearing voices, and sleep problems. R. at

118-21, 299-301, 668. However, there is no indication that the Board considered these manifestations of schizophrenia and applied them to the presumption available under section 1112. See 38 U.S.C. 1112. Further, VA regulation 3.307© states in pertinent part:

No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10[%] within the

applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumpti[on] period, but only that there be then shown by acceptable medical or lay

evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed

period may have no particular significance when first observed, but in light of subsequent developments it may gain

considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations

within the period, should be developed to determine whether

there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10[%] degree.

38 C.F.R. 3.307©. Thus, the Board was also required to discuss whether under 3.307© the statements constituted "acceptable medical or lay evidence." Id.; Fortuck v. Principi, 17 Vet.App. 173, 180 (2003). Here, the Board did neither. Because Mr. Motley had service during a

period of war and alleged he suffered from a chronic disease, the Board was required to adjudicate his claim under section 1112 as well as on a direct basis. See 38 C.F.R. 3.303(d). Therefore, the Court holds that the Board's statement of reasons or bases failed to address all material issues of fact and law presented on the record and is inadequate to enable Mr. Motley to understand the precise basis for the Board's decision or to facilitate informed review in this Court. See 38 U.S.C. 7104(a), (d)(1); Allday and Gilbert, both supra.

Additionally, in this case, lay witnesses provided personal accounts of Mr. Motley's personality and behavioral changes after his discharge from service. R. at 134, 299-305. The Board determined that these lay statements were not reliable because they were "at odds with the clinical record and the veteran's own earlier reports of onset of mental problems associated with private employment some years after service, his prior denials of nervous problems during military service and the lack of a diagnosed chronic mental disability until many years after service." R. at 8. The

Board simply disregarded all of the family member's statements as unreliable because they were inconsistent with Mr. Motley's earlier statements in 1987 and 1990 that his schizophrenia began more than a year after his discharge from service. However, the Board also noted in its decision that the June 1990 psychological examination revealed "chronic and serious intellectual and memory deficits" and that such deficits appeared "due to deterioration commonly seen in chronic process schizophrenia." R. at 6-7. Accordingly, the Board erred by, on one hand, relying on Mr. Motley's earlier statements regarding the onset of his schizophrenia to deny his claim while, on the other hand, acknowledging that he had serious intellectual and memory deficits during that same time . R. at 6. Even though the evidence does not show hospitalization for a mental illness until 1982, Mr. Motley and his family contend that he has

had the symtomatology since he was discharged from service in 1977. Although lay witnesses are not competent to offer expert medical testimony, i.e., to diagnose appellant's psychiatric condition or offer"

etc

Here it gets good:

"Because Mr. Motley had service during a

period of war and alleged he suffered from a chronic disease, the Board was required to adjudicate his claim under section 1112 as well as on a direct basis. See 38 C.F.R. 3.303(d). Therefore, the Court holds that the Board's statement of reasons or bases failed to address all material issues of fact and law presented on the record and is inadequate to enable Mr. Motley to understand the precise basis for the Board's decision or to facilitate informed review in this Court. See 38 U.S.C. 7104(a), (d)(1); Allday and Gilbert, both supra. "

I feel this is the crux of your CUE, the regulation that the VA failed to use to properly adjudicate your claim:

I would just add to your claim that

The BVA in their 1982 decision failed to adjudicate my claim properly on the basis of presumption as found within 38 USC 1112.

In Motley V Principi ,CAVC # 02=1194,

the Court stated "Because Motley had service during a period of war and alleged he suffered from a chronic disease, the Board was required to adjudicate his claim under Section 1112 as well as on a direct basis."

I too had service during a period of war yet was denied the application of presumption. This was clearly erroneous as , when presumption was legally applied in a subsequent claim, I was awarded service connected on that basis.

What do you think Terry?

[Guest Jim S.]

Berta: I'm not as familiar with Terry's claim as you are, but I see clearly your argument, since it is the leading argument in my CUE claim.

I noticed that you are citing the 38 USC, will it hurt my CUE claim, if I only used the 38 CFR regs being used at the time the CUE accured? I had enough trouble trying to find the regs as they were applied back in 1973, I didn't think about what 38 USC's were in effect, to give weight to the 38 CFR's.

Jim S. :)

[Guest Berta]

Berta: I'm not as familiar with Terry's claim as you are, but I see clearly your argument, since it is the leading argument in my CUE claim.

I noticed that you are citing the 38 USC, will it hurt my CUE claim, if I only used the 38 CFR regs being used at the time the CUE accured? I had enough trouble trying to find the regs as they were applied back in 1973, I didn't think about what 38 USC's were in effect, to give weight to the 38 CFR's.

Jim S. :)

Jim- I dont think it would matter- what I mean is Title 38 is all law applicable to veterans= and 38 CFR is technically the way VA is supposed to apply these laws.

In the VA adjudication manuals- they almost always cite the CFRs.

For example- the doctrine of benefit of doubt is 38 USCS 5107 ( and 38 CFR 3.102 (2003)

or the SMC "K" award- 38 USCS 1114 (K) or 38 CFR 3.350 (a) (4) (2005)

[Guest fla_viking]

Dear Berta.

There is one real good point in your review. When the VA fails to obtain records. The whole process becomes subverted. The veteran cant appeal properly, The court cant do its review, and it riggs a claim to fail because no one but the VA knows what it did not do. especially duringt the 70's and 80's where it was policy for the VA not to give reason or basis for its findings and only its bare conclusions. Man talk about making a riddel out of VA law so there is no way for the vet to win a claim.

Terry Higgins

[Guest Berta]

Yeah and in the 1970s and 1980s there was no internet- which I think is the best weapon a vet has today to help combat many negative VA decisions.

In the late 1980s we found a paperback book called The Vietnam Veterans Survival Guide. It was co authored by DAvid Addlestone, who became a contributing author of NVLSP's VBM.(I consider this book as a claimant's Bible if they have a difficult claim)

One today in 1988 I fooled around with our PC modem- didnt have a clue how it worked- and a few hours later I was able to get one on one with Vet Link- many of their access numbers were in the Survival Guide.

Then the internet got invented and other veterans orgs popped up there but today we have the ability to click on the CAVC or BVA in a heartbeat as well as 38 CFR- the VA's own med criterias etc-

If these avenues of information were available long ago- the whole claims situation might have changed for vets-at that time- if they had good PC access.

What bothers me the most about CUE criteria is that it cannot challenge a prior lack of duty to assist-a basic tenant that is the inital part of a claim-today-the Benefit of Doubt standard also does not apply to a CUE claim challenge. And it wasn't until Gilbert V Derwinski that the Reasons and bases for a denial had to articulate an analysis of the credible or probative evidence that the claimant submitted and valid reasons for any "implicit rejection" of this evidence by the Board. (also in Moore V. Derwinski)