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]

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.