Cue

[john999]

I had my DRO Hearing with my lawyer regarding my CUE. The lawyer argued that a CUE was made because all the evidence that was available to the rater was not considered. He did not argue how the evidence was weighed only that it was not considered in the decision. My psychologist's report on a VA Form was not considered in the rating decision. The DRO seemed to agree that I was low balled in my original rating, but that could just be talk. He will have to have some brass ones to award me 30 years of retro based on a CUE. However, if we go to court over it then it might become a precedent and the VA does not want that. If the VA admits a CUE then the evidence will be reconsidered again. God knows what will happen then, but I would advise anyone with a CUE that involves retro to get a lawyer. You can be blown out of the water so easily depending how you argue the case. I am asking for IU but even if I get 30% from 1971 to 1994 it would be a nice sum of money. If I had argued that I had an inferred claim for IU I would have lost because the lawyer said that was not CUE. Is there anyway I could lose service connection due to a CUE after 37 years? I thought it was only through fraud or character of service that your SC could be severed after so many years. Talking about that old stuff made me nervous, and I can't believe what the Army did to me. They knew I was sick and they threw me out anyway with nothing. Then the VA just low balled me and threw me aside as well. I got no appeal rights or any of that stuff.

It sort of reminds me of Berta's IMO's that have not been considered or even recognized. This seems like an error following the lawyer's logic. All evidence that is available to the rater must be considered. It does not have to win the day, but must at least be recognized if I understand it. That would be like the VA ignoring your SMR's and making a decision without regard to them. That would be an error.

[Josephine]

Is there anyway I could lose service connection due to a CUE after 37 years? I thought it was only through fraud or character of service that your SC could be severed after so many years.

John,

Is this something that you are seriously concerned about?

With you guys, I never know if you are asking a question, or

thinking out loud.

Betty

[Mcafee]

I believe also that all necessary information was not weighed and or consider discharged 1978 i was rated a 0 % 1982 more than 4 years after discharge plus i had Hospitaliztion on active duty 50 days.

[carlie]

John,

Chill, you've committed no fraud - you'r safe.

jmho,

carlie

[john999]

Macafee

It cannot be a question of how evidence was weighed. If the VA had, or should have had evidence or information, and they did not consider it then that would be an error, according to my understanding. Also the evidence must be so important that it would have altered the outcome of the rating decision to reasonalbe minds. How can you get a fair hearing if there is evidence in the VA's possession that they ignore. If the VA fails to get your SMR's and then denies your claim that is an error. It has to be a major error that would alter the outcome of a rating decision. I bet a lot of these old claims of our are sorely deficient.

Betty, I don't think they will cut off my SC even if they do decide there was a CUE. I have been in treatment for 36 years. Betty, when did you first file a claim? Everything about your discharge, and subsequent ratings makes no sense. If your anxiety disorder appeared in-service and you were awarded compensatin for that disorder it seems to me that you should have gotten compensation from the day you filed your first claim. How can it be otherwise? Also, it would be difficult but perhaps you could have a review of your actual discharge. How can you develop a serious anxiety disorder in service and then be kicked out for a PD or unsuitability. You need a lawyer for this and it is a high moutain to climb, but a mistake was made. If you had filed within one year of discharge you should have gotten SC right back to the date of discharge. The VA and military protect themselves against these things by deadlines for filing for discharge reviews and corrections of military records, but if your case is compelling you can sometimes get there. I just don't see how the VA or military can say your emotional condition was so bad that you needed to be discharged but then give you a low ball award for so many years. There was no evidence of a PD, so it must have been the service connected GAD that led to your early discharge, and the GAD was and is so bad you have not worked in 44 years. This is what they did to us in the bad old days. I mean if you were not catatonic or chewing the carpet you would be kicked out as unfit or unsuitable. It was just to save money. They did not even want us to get near a medical board.

I know in Pete's case somehow they managed to avoid a medical discharge even though from what he tells us the army was well aware he had a serious problem. I spent two months in an Army mental hospital and they still said "inability to adapt to a military environment" and kicked me out. We need about 10,000 lawyer to descend on the VA and get this mess cleared up. Karl, my lawyer, also does SSD work and he said the VA is so much worse than SSA he can't believe it. He said my C-File was impossible to understand. I did not get the complete file when I asked for it a few years ago. It was about a foot thick. The good news is I am only asking them to consider one single decision and not my whole file. However, if they admit to the original decision being flawed and increase my rating it goes forth as if the CUE'd rating was the original rating. The rating protection is also in effect. I am excited that is why I am blabbing so much about something that has not happened yet. It is good to see them on the defensive.

[Rockhound]

john999: I hope you win your claim that evidence was not considered. It brings to mind a question I have concerning the evidence that was used in my claim that denied SC. Can the VA rater make a decision soley on a verbal history of event in the life of vetran before service, when their is nothing to support his statements? Nothing during service to support that the indivicual had or exibited a PD other than an, unsupported by any tests, exams, or findings, the VA examiners own opinion? When their are such tests, exams, and/or findings by a conforence of Psychiatrists in the records, in possesion and before the rater at the time that supports a mental disorder, a disorder noted at the time as being in remission, but was said to be such a problem that he was severely disabled for further service, but only moderately disabled for future civilain life.

I here you when you say the service put you out on the streets with nothing, although I had a diagnosis and such findings to support it. I deffinently here you when the VA puts you on the streets with nothing, saying all the events that led up to my diagnosis in service had nothing to do with what all the psychiatrists that made up the medical board found, but that they were mistaken and it was a PD that had casued everything, even not on iota of concrete evidence was presented to counter their findings.

I feel for you and hope things go your way.

Rockhound Rider

[carlie]

Rock,

A VA rater can make a decision on anything they want.

Now whether the decision coincides with the regs is a different issue.

VA raters can make good sound decisions, which can be great for the claimant.

VA raters can make poor decisions, based on poor judgement,which leave the claimant having to prove different.

jmho,

carlie

[Josephine]

Macafee

It cannot be a question of how evidence was weighed. If the VA had, or should have had evidence or information, and they did not consider it then that would be an error, according to my understanding. Also the evidence must be so important that it would have altered the outcome of the rating decision to reasonalbe minds. How can you get a fair hearing if there is evidence in the VA's possession that they ignore. If the VA fails to get your SMR's and then denies your claim that is an error. It has to be a major error that would alter the outcome of a rating decision. I bet a lot of these old claims of our are sorely deficient.

Betty, I don't think they will cut off my SC even if they do decide there was a CUE. I have been in treatment for 36 years. Betty, when did you first file a claim? Everything about your discharge, and subsequent ratings makes no sense. If your anxiety disorder appeared in-service and you were awarded compensatin for that disorder it seems to me that you should have gotten compensation from the day you filed your first claim. How can it be otherwise? Also, it would be difficult but perhaps you could have a review of your actual discharge. How can you develop a serious anxiety disorder in service and then be kicked out for a PD or unsuitability. You need a lawyer for this and it is a high moutain to climb, but a mistake was made. If you had filed within one year of discharge you should have gotten SC right back to the date of discharge. The VA and military protect themselves against these things by deadlines for filing for discharge reviews and corrections of military records, but if your case is compelling you can sometimes get there. I just don't see how the VA or military can say your emotional condition was so bad that you needed to be discharged but then give you a low ball award for so many years. There was no evidence of a PD, so it must have been the service connected GAD that led to your early discharge, and the GAD was and is so bad you have not worked in 44 years. This is what they did to us in the bad old days. I mean if you were not catatonic or chewing the carpet you would be kicked out as unfit or unsuitable. It was just to save money. They did not even want us to get near a medical board.

I know in Pete's case somehow they managed to avoid a medical discharge even though from what he tells us the army was well aware he had a serious problem. I spent two months in an Army mental hospital and they still said "inability to adapt to a military environment" and kicked me out. We need about 10,000 lawyer to descend on the VA and get this mess cleared up. Karl, my lawyer, also does SSD work and he said the VA is so much worse than SSA he can't believe it. He said my C-File was impossible to understand. I did not get the complete file when I asked for it a few years ago. It was about a foot thick. The good news is I am only asking them to consider one single decision and not my whole file. However, if they admit to the original decision being flawed and increase my rating it goes forth as if the CUE'd rating was the original rating. The rating protection is also in effect. I am excited that is why I am blabbing so much about something that has not happened yet. It is good to see them on the defensive.

John,

At this time, the VA is probably holding the ace on my first filing date.

I have some papers which would lead one to think that I filed in 1978.

In fact the C&P's both state, I first filed in 1978.

The letter I received from the VA in 1978 was from one of the

counselors and all it said, I was not service connected.

I never went to any rating board or squat.

That was it, but then again, I was so fearful of the VA, for

Lt. Kovaxxx told me in order to receive my early discharge

I had to give up my G. I Benefits. I believed him and it wasn't

true, although, I do have the original copy of a paper that

I had to sign giving him permission to destroy all of my medical

records.

The AMC came up with 1992, although that was impossible, but at

this time I am going alone with it.

The 10% from 1992 - 1997 - does not suit, but I am not touching it at

this time.

The 50& from 1997 - 2005 - doesn't go over too hot either.

The 70% from 2005 - 2008 - is fine.

I am waiting for them to pay me my husband as a dependent for

11 years back pay.

The Service Manager wrote to me and said the Appeals Team was working

on my claim for headaches. I will see where in the heck that takes me

considering he wrote to me two weeks earlier to tell that in July

2004, I received a letter of no service connection.

The " New and Material Evidence" of the Psychiatric Records" were

to re-open the claim for Chronic Anxiety and Service Connection

for headaches.

Now, if they grant the headaches, they will also have to go back to

1992.

I want the TDIU and get to 100% and hope this may all be accomplished

within the next 4 months.

I would like a complete copy of my C-file, to see what is in it.

If I ask now, I will just slow everything down.

In the end I am going to contact a lawyer, for there is one

statement the DRO made that there were no record stating

I was not employed.

My file reeks of this statement.

What in the heck are they calling the Non Service Connected Pension.

I sure am not 65. I didn't get it for my age or income.

I was awarded the NSC and then denied due to excessive.

This fact should stand on its own.

John,

They treated us both the same, they have made me feel like some

low scum criminal for fighting them.

John,

Keep them running for both of us!!

Betty

[tssnave]

Betty,

Just don't let the appeal window close on your Earliest Effective Date.

When you send in your NOD for the effective date send in the C&P exams and VA counselor paper highlighting where it states you applied in 1978. Win the effective date and then go on to show how much you did or didn't work over the years with a SS statement and fight the rating percentage.

John, keep us posted - we all want your claim to be fairly adjudicated so you can win your case and enjoy your retro.

Thanks,

TS Snave

[john999]

I will keep you all posted. Just remember if judgement is involved it is not a CUE.

It is an error in the legal administrative process. When you file that CUE is must be separated from questions of weighing of evidence or judgement. A bad decision is not always a CUE. Most of the time it is not CUE, or the VA would be swamped with them. This is why I got a lawyer because the fine points of law for a CUE are beyond me because I am too close to my own claim. We see a horrible decision and we think it must be CUE. Often it is just an awful decision that requires a good IMO maybe. I don't know if I will actually win this thing or not. I have to wait.

[Josephine]

Betty,

Just don't let the appeal window close on your Earliest Effective Date.

When you send in your NOD for the effective date send in the C&P exams and VA counselor paper highlighting where it states you applied in 1978. Win the effective date and then go on to show how much you did or didn't work over the years with a SS statement and fight the rating percentage.

John, keep us posted - we all want your claim to be fairly adjudicated so you can win your case and enjoy your retro.

Thanks,

TS Snave

Thanks, Tom,

I am glad to see you are feeling better. Days are looking brighter for me also.

I want the rest of the back money before stirring up trouble.

Always,

Betty

[john999]

Rock

You asked if a rater can just base a decision on a verbal history of the patient with no proof or evidence. The answer is they do it all the time, especially when they want to make you a PD. Then the go into your childhood, teenage years and all that to make you look like a sociopath. You give them an inch and they will invent a mile of rope to hang you. Tell them you skipped school once and you are a chronic truant. If you ever experimented with drugs you are a confirmed abuser. If you got into a scrap in high school you are a thug. They weave a trap for you to fall into as well.

[halos2]

I have a question regarding "CUE"

If a rater or DRO refuses to grant a claim because they state " normal clinical evaluation on the military separation examination conducted on... and the date on the separation that notes the said injury is wrong, like it is actually a date 2 months before the actual injury, therefor should that not be CUE?

On the front of form 89 back injury of any kind is check yes, and worn a back support or brace, and pain are all checked yes, but the rater and DRO examiner state according to the reverse side of form , no probs, no seq" no further problems from back injury on date( this is not the true date of injury nor a date vet went to medical clinic, and it is 2 months before the actual back injury) so is it not a CUE?

Like the date typed is july 1969 and the date of the actual injury is sept 1969 !!!!

There is no injury reported on that date at all in the SMR, yet they use that for there case to invalidate the claim!

I had my DRO Hearing with my lawyer regarding my CUE. The lawyer argued that a CUE was made because all the evidence that was available to the rater was not considered. He did not argue how the evidence was weighed only that it was not considered in the decision. My psychologist's report on a VA Form was not considered in the rating decision. The DRO seemed to agree that I was low balled in my original rating, but that could just be talk. He will have to have some brass ones to award me 30 years of retro based on a CUE. However, if we go to court over it then it might become a precedent and the VA does not want that. If the VA admits a CUE then the evidence will be reconsidered again. God knows what will happen then, but I would advise anyone with a CUE that involves retro to get a lawyer. You can be blown out of the water so easily depending how you argue the case. I am asking for IU but even if I get 30% from 1971 to 1994 it would be a nice sum of money. If I had argued that I had an inferred claim for IU I would have lost because the lawyer said that was not CUE. Is there anyway I could lose service connection due to a CUE after 37 years? I thought it was only through fraud or character of service that your SC could be severed after so many years. Talking about that old stuff made me nervous, and I can't believe what the Army did to me. They knew I was sick and they threw me out anyway with nothing. Then the VA just low balled me and threw me aside as well. I got no appeal rights or any of that stuff.

It sort of reminds me of Berta's IMO's that have not been considered or even recognized. This seems like an error following the lawyer's logic. All evidence that is available to the rater must be considered. It does not have to win the day, but must at least be recognized if I understand it. That would be like the VA ignoring your SMR's and making a decision without regard to them. That would be an error.

[john999]

halos

When did you file your last NOD? If it is after June 2007 you can get a lawyer to review your claim. Find someone who knows what they are doing. You not only need someone who knows the law but someone who can craft a response. I don't know if your claim is CUE. I am not even sure mine is going to reach that level. If there is a lot of retro involved then a lawyer will be more willing to give it a shot because there is more money for him if he wins for you. One of the real problems with these claims is getting the VA to really read your claim. If they don't understand it or fear granting a large retro they may just brush it aside. If you have a legal eagle they are less likely to do that.

[halos2]

john999

I filed my NOD in 2006 and had my personal hearing sept 07 and was notified mar 08 denied and filed for BVA then apr 08 and file is sitting in RO waiting so I am still able to send info but I want to know if CUE is also what I want to bring up as they use the discharge summary as part of the denial and the date on the summary injury they use is NOT VALID! No such injury on this date, but was 2 months later...spoke with "newly want to fight va attorney" and she said I have done all thus far and she would take it if BVA denies it... SO DO I CUE THIS NOW OR WHAT?

DO you know how to get this info to berta or wings also?

halos

When did you file your last NOD? If it is after June 2007 you can get a lawyer to review your claim. Find someone who knows what they are doing. You not only need someone who knows the law but someone who can craft a response. I don't know if your claim is CUE. I am not even sure mine is going to reach that level. If there is a lot of retro involved then a lawyer will be more willing to give it a shot because there is more money for him if he wins for you. One of the real problems with these claims is getting the VA to really read your claim. If they don't understand it or fear granting a large retro they may just brush it aside. If you have a legal eagle they are less likely to do that.

[john999]

Halo

You can't CUE the decision because it is not a final decision. You are still in appeals process. The BVA has a chance to fix this error. You can only file a CUE on a final decision. Because of your NOD date your lawyer can't really help until you get to the Court of Veteran Appeals. You need to just keep getting evidence and send it to where your claim is at be it VARO or BVA. Do you have a BVA docket number? Did you bring up these matters at your DRO Hearing?

[halos2]

No docket # yet it is still sitting at RO. I have been over my records so much till I am dizzy. I found it when reviewing each word they wrote back and I did bring up issues at the hearing such as faulty c & p exam and examiner getting the ax no more c & p's for her, and yet when I finally got the transcript some of these issues are not in the typed record.

Also in SMR and VA tx records as well as medical records all these years it is written "back pain radiating down legs"... yet they say no continuation noted...

Had an epidural pain and steroid injection 2 1/2 wks ago and pain is worse!! There is a competition in my body with my brain and my spine...PTSD is rampid with these extra stressors!

So CUE cannot be brought up anytime? Only when you go to the BVA level? I thought if I wrote it to them now they would reexamine the evidence and award rather than have egg on their face when I win. But you don't think I should now??

I'm mad. I'm sad.

I'm frustrated.

I'm p.o'ed.

I want it straighted out now.

I've given them the scott free card for 34 years, now it's their time to get it right!

Do you think I should paper them to death with more facts?

Definately get another IMO right? Or have the other 2 Dr's clarify and add to previous testimony?

Got VFW SO what do you think there?

Halo

You can't CUE the decision because it is not a final decision. You are still in appeals process. The BVA has a chance to fix this error. You can only file a CUE on a final decision. Because of your NOD date your lawyer can't really help until you get to the Court of Veteran Appeals. You need to just keep getting evidence and send it to where your claim is at be it VARO or BVA. Do you have a BVA docket number? Did you bring up these matters at your DRO Hearing?

[Rockhound]

As I see it,You can not claim CUE until the decision becomes final., however there appears to be either evidentiary error or predudical error, that you can bring up in your NOD or at the BVA.

Since they are basing their assumption on incorrect evidence and if the BVA doesn't remand for correction and further development and denies it also, then keep appealing based on evidentiary error and/or predudicial error, since the evidence they are using is wrong.

This of course is MHO

Rockhound Rider

[john999]

If you let your VARO decision become final you could bring up CUE but you don't want to do that. A CUE is a rare long shot. You want your claim to be won at the local level if possible via a DRO Hearing or some kind of personal hearing. Going to the BVA means you have to wait two years. You may win, lose or get a remand. If there is anyway on God's Green Earth you can get in front of a human being at the VA to read your evidence you have a much better chance of winning. They don't even read the evidence at the VARO unless you are sitting across from a human. I know this because my claim for an increase in my artery disease was denied because I did not go to a C&P exam. I was never even informed of this exam. The DRO fixed that problem in one minute. Now I get the exam. It could have gone to the BVA and I could have lost because they would accpect the VA's word. They system is just a disaster, and only a human being looking at your file and your evidence can fix it.

[halos2]

The DRO at my hearing did deny it! She said 2 IMO's eval not good as they related to SMR and present but not in between..Yet one gave all medical info from the 1970's to current but neither gave info of review of VA files in the 1980's.

The SO said the file is sitting there waiting to go to BVA. I keep sending more info to them to look at as another DRO has not reviewed it again before it will leave. I don't think I could get another hearing even though I have more evidence, do you?

My SO didn't tell me I could ask for another hearing as it has been denied 2 times. I think I can't get another just to present more evidence.

So are you aware of something else? I am open for anything that could speed up the process. I know face to face helps as it did that day for my PTSD increase but not for my back injury on the same day.

If you let your VARO decision become final you could bring up CUE but you don't want to do that. A CUE is a rare long shot. You want your claim to be won at the local level if possible via a DRO Hearing or some kind of personal hearing. Going to the BVA means you have to wait two years. You may win, lose or get a remand. If there is anyway on God's Green Earth you can get in front of a human being at the VA to read your evidence you have a much better chance of winning. They don't even read the evidence at the VARO unless you are sitting across from a human. I know this because my claim for an increase in my artery disease was denied because I did not go to a C&P exam. I was never even informed of this exam. The DRO fixed that problem in one minute. Now I get the exam. It could have gone to the BVA and I could have lost because they would accpect the VA's word. They system is just a disaster, and only a human being looking at your file and your evidence can fix it.

[john999]

Ask for another hearing and see what happens. Say you have new evidence. Go over all the details of how a DRO Hearing is supposed to proceed and see if you can find where it was not done according to the rules. As long as your claim is still at the VARO I would try and get another hearing to present new evidence.