Can You Believe "we" Proved My Claim 44 Years Later

[free_spirit_etc]

I think I would stay away from the CUE on this one - at least until I knew more. Because they could turn that into a CUE hide and seek game.

I was just reading the Hayre decision - http://www.ll.georgetown.edu/federal/judic...ons/98-7046.pdf

This veteran claimed a CUE - and took it to Federal Court - because the VA did not get the SMRs or notify the vet that they were not recieved - prior to issuing a decision.

The GOOD thing is that the Court decided that because of the VA error - that the claim was STILL PENDING and NOT final - because of the regs in effect at that time. (following court decisions have decided that this case can be applied in VERY limited circumstances - so WATCH trying to use it without a lot of research).

Anyway - the Hayre case was ALSO a case that had originally been denied in 1992.

So I would think - that in this instance - if Betty called it a CUE too quickly - she could spend a lot of years fighting that it WAS a CUE - and the VA would insist it was NOT a CUE (because it was actually a pending claim).

Now the RIGHT thing to do in that case, would be for the VA to SAY - No it is not a CUE, it is a nonFinal decision - therefore we will pay you back to the date of filing.

But what the VA - as WE know the VA - MIGHT do - is spend YEARS proving it is not an ACTUAL CUE - so that Betty could finally get to court - so that the court could say - No, it is not a Cue - it is a pending claim - and send it back to the BVA who would send it back to the RO.

Years wasted arguing over words, rather than truth (which the VA has been known to do on more than one ocassion.

I am not for SURE if it is a CUE or a pending claim - I lean toward pending claim. Because basically the regs say that if the SMRs are not of record - and discovered - the case has to be RE-decided - and paid back to the date of claim.

And as Betty said - the BVA said the military discharged her knowing full well that she was suffering from chronic anxiety - but putting the pseudo-PD tag on her.

If they put THAT in the decision - there just might be the possibility that they will pay her back to her discharge. I don't know the regs on this - but she might have a case that the one year deadline to file a claim and be paid back to date of discharge be equitably tolled - because she was intentionally misled - the military had information in it's possession - which though they didn't actually "keep" from her (as she KNEW she had been treated) - they denied her the due process of being ABLE to claim within that period - because they gave her the type of discharge that prevented her from doing so.

So I think the BVA was trying to make SOME ammends for what she went through. She was traumatized in the military, choked by a doctor until she wet her pants - and when she couldn't take it - they KNEW she had chronic anxiety (CAUSED by them) and they let her out - on the condition that she accept the tag that THEY knew would prevent her from being adequately compensated for the harm they had caused.

And the BVA could see how the game continued for MOST of her life -

Odd that they didn't accept the first C&P in the first place - Well not odd really... But when Dr. Crowley stepped up to the plate and said "Game's over - I CAUGHT you!" - the game suddenly changed. They know that he knows - and they know that he is a doctor that provides expert testimony in court. I don't think they want him going to court in Betty's behalf - and exposing the horror she was put through - all in the name of "caring for the veteran."

Again, I am not sure of the exact laws on paying all the way back to discharge. But since the VA brought that point up (about her being discharged with the wrong label when they knew fully well what she was doing) there could be a possibility that she would be paid to that time.

As Dr. Crowley said - "The Game is OVER!" Maybe they will stop playing games - and start playing by their own rules - on this case.

Free

I thought that newly discovered SMR's were the basis of a CUE claim. If the government had the records, and the VA did not do their duty to obtain them is that not CUE?

[free_spirit_etc]

Also - if they do the "right thing" on Betty's claim - they can pretend like they don't use these bogus discharges as often as they do.

Free

[Josephine]

I think I would stay away from the CUE on this one - at least until I knew more. Because they could turn that into a CUE hide and seek game.

I was just reading the Hayre decision - http://www.ll.georgetown.edu/federal/judic...ons/98-7046.pdf

This veteran claimed a CUE - and took it to Federal Court - because the VA did not get the SMRs or notify the vet that they were not recieved - prior to issuing a decision.

The GOOD thing is that the Court decided that because of the VA error - that the claim was STILL PENDING and NOT final - because of the regs in effect at that time. (following court decisions have decided that this case can be applied in VERY limited circumstances - so WATCH trying to use it without a lot of research).

Anyway - the Hayre case was ALSO a case that had originally been denied in 1992.

So I would think - that in this instance - if Betty called it a CUE too quickly - she could spend a lot of years fighting that it WAS a CUE - and the VA would insist it was NOT a CUE (because it was actually a pending claim).

Now the RIGHT thing to do in that case, would be for the VA to SAY - No it is not a CUE, it is a nonFinal decision - therefore we will pay you back to the date of filing.

But what the VA - as WE know the VA - MIGHT do - is spend YEARS proving it is not an ACTUAL CUE - so that Betty could finally get to court - so that the court could say - No, it is not a Cue - it is a pending claim - and send it back to the BVA who would send it back to the RO.

Years wasted arguing over words, rather than truth (which the VA has been known to do on more than one ocassion. ;)

I am not for SURE if it is a CUE or a pending claim - I lean toward pending claim. Because basically the regs say that if the SMRs are not of record - and discovered - the case has to be RE-decided - and paid back to the date of claim.

And as Betty said - the BVA said the military discharged her knowing full well that she was suffering from chronic anxiety - but putting the pseudo-PD tag on her.

If they put THAT in the decision - there just might be the possibility that they will pay her back to her discharge. I don't know the regs on this - but she might have a case that the one year deadline to file a claim and be paid back to date of discharge be equitably tolled - because she was intentionally misled - the military had information in it's possession - which though they didn't actually "keep" from her (as she KNEW she had been treated) - they denied her the due process of being ABLE to claim within that period - because they gave her the type of discharge that prevented her from doing so.

So I think the BVA was trying to make SOME ammends for what she went through. She was traumatized in the military, choked by a doctor until she wet her pants - and when she couldn't take it - they KNEW she had chronic anxiety (CAUSED by them) and they let her out - on the condition that she accept the tag that THEY knew would prevent her from being adequately compensated for the harm they had caused.

And the BVA could see how the game continued for MOST of her life -

Odd that they didn't accept the first C&P in the first place - Well not odd really... But when Dr. Crowley stepped up to the plate and said "Game's over - I CAUGHT you!" - the game suddenly changed. They know that he knows - and they know that he is a doctor that provides expert testimony in court. I don't think they want him going to court in Betty's behalf - and exposing the horror she was put through - all in the name of "caring for the veteran."

Again, I am not sure of the exact laws on paying all the way back to discharge. But since the VA brought that point up (about her being discharged with the wrong label when they knew fully well what she was doing) there could be a possibility that she would be paid to that time.

As Dr. Crowley said - "The Game is OVER!" Maybe they will stop playing games - and start playing by their own rules - on this case.

Free

Free,

I think the BVA is calling it a pending claim. I will play their game to settle this for now. I will even let them pay me back to 2004 and then call them on all of this.

Yes, Dr. Crowley is prepared to go into court. He did in fact call them on their game.

They know he works for the Department of Defense and he is an Expert in his field.

That is exactly the reasons I contacted him. I checked his credentials througly before sending him the first 2700.00 and my records.

He was completely up front on this deal. He would only place into the record as the medical facts stated.

I also never received a copy of the C&P before he turned it in. I knew this also. If he had found a Personality Disorder, he would have turned that in also.

He mailed me a hard copy a couple of weeks after he faxed his letter to the Director of the BVA.

He does not play games with his reputation.

Thanks a bunch!!

Betty

[Josephine]

Also - if they do the "right thing" on Betty's claim - they can pretend like they don't use these bogus discharges as often as they do. ;)

Free

Free,

I hope to put a stop to these bogus discharges.

Always,

Betty

[free_spirit_etc]

If we are starting a pool to bet on what day Betty gets her letter - put me in for a $5 bet for her getting it on a SATURDAY!"

Put it on my tab. My credit is good. The VA OWES me!

ACKKKKKKKKKKKKKKKKKK

Free

Berta,

WE shall not wait long, for I was told today the AMC rated the claim

and sent the result to the R.O to type up.

Thanks so much,

Betty

[hurryupnwait]

Hi Betty

I ve been dancing down the hallways for ya. This is great news. I m elated.

The trip over the mountain in the rain to DC was the trip of a lifetime that put closure to a 44 year injustice.

Free really knows her stuff, she has explored the options you could take with just about any decision the VA makes.

In writing my own NOD, I used Free's reasoning on my claim, I also used quotes from Berta and many others here on Hadit.

I decided to send the NOD and a letter to the Law Office of Ken Carpenter for review, his office called me back and wanted to represent me. I gave it a lot of thought and decided to sign a contract with his office. He is writing the NOD.

Happy Trails

Paul

Edited March 11, 2008 by hurryupnwait