New Question On Cue

[Rockhound]

Berta: You stated in a another posting,

"It might be a CUE in some cases-

CUE:1. final VA or BVA decision

2. legal error in that decision (not DTA error or medical disagreement etc)

3. manifested alter outcome but for CUE (meaning the CUE cost the vet some retro)"

My question is this: If I prove (1) & (2) of CUE and then show how the evidenc at the time demonstrated, that had it not been for the error, SC should have been awarded to at least 10%, then does that mean that number (3) requirement of CUE is met, showing that outcome would have been manifestly changed?

Rockhound Rider a.k.a. Jim ;)

[Angela]

Rockhound,

Groves v Peake, Federal Circuit, May 2008

I came across this Federal Circuit decision and thought it might be pertinent to your situation. It states...

38 C.F.R. § 3.303( a ) provides that service connection “may be accomplished by

affirmatively showing inception or aggravation during service . . .” This provision further instructs that “[d]eterminations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.” Id. § 3.303( a ). Section 3.303( a ) provides that each disabling condition for which a veteran seeks service connection “must be considered on the basis of . . . all pertinent medical and lay evidence.” See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Subsection ( b ), titled “Chronicity and continuity,” establishes the circumstances under which service connection is attributed to a chronic disability incurred or aggravated during active service. 38 C.F.R. § 3.303( b ). It provides in relevant part: With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any later date,

however remote, are service connected, unless clearly attributable to

intercurrent causes.

Edited August 19, 2008 by Angela

[john999]

Reading some of these old claims from the early 70's or late 60's they are just a joke. My decision consisted of one and a half pages. Totally slanted towards the VA's evaluation with all information that would argue for a higher rating simply disregarded. To get a rating higher than 10% would mean that you were very psychotic to extent that you were institutionalized for some time. That is my impression. Rockhound's point about all evidence having to be considered in a sympathetic way is something the VA did not do and does not do today. The rating system is corrupt and is a fraud on America's veterans. People getting 100% today would have been lucky to get 10% in the bad old days. I was in hospital in the Army with people that would have gone right from the Army to the Salvation Army.

[Angela]

Rockhound,

I've been looking through your posts trying to find exactly what the RO said way back when, to try to find a way to show that your medical records either weren't considered or that they were misrepresented... etc.

In the original decision, did the RO say anything like ...

"service medical records indicate..." or "service medical records do not show..."?

Angela

[Rockhound]

Rockhound,

I've been looking through your posts trying to find exactly what the RO said way back when, to try to find a way to show that your medical records either weren't considered or that they were misrepresented... etc.

In the original decision, did the RO say anything like ...

"service medical records indicate..." or "service medical records do not show..."?

Angela

Angela: the VA C&P Examiner only makes reference to, "That on the basis of the history" and what the VA Rater wrote in his decision in which he stated, "Available records which form a portion of Mr.XXXX's C file indicate a pattern of disability first thought to stem from a psychosis and later found to stem, instead from a personality disorder.

As I have stated many times before, their is no report, statement, implied or otherwise states that the Acute Schizophrenic Episode I suffered, stemmed from a personality disorder, this is pure medical assumption made up by the VA Rating Officer and no one else. Also this is a medical opinion that should have been made by a qualified medical specialist and not a VA Rating Officer. This sort of opinion is well beyond the scope and authority of them to make.

Also the VA C&P Examniner makes such a broad statement, refering to the history in such a manner, that it would be impossible for one to pick out what exactly in the history was so compeling to him to come to his opinion. He sights only one reference to one intelligence test and in the same statement discounts the test that rebutts his assertion. He offers nothing more than his opinion with no testing of his own in which to support his differing opinion. Yet the VA Rater felt his opinion was worth more than what the tests showed to be fact.

I don't know if this helps you understand anything more clearly or not, but that is all I have been able to find that comes close to what you asked about.

Rockhound Rider

Edited September 16, 2008 by Rockhound

[Angela]

Rockhound,

Thanks for the heads-up e-mail. Hope this is the post you were referring to, if not, let me know.

As I said, I was looking through your posts to see if any evidence or med records had been misrepresented. That seems to me to be a key to proving CUE in cases decided before 1990. If you read through the decision and find that it makes a statement about the evidence that is clearly an error that might help. Sounds like they were as vague as possible on your decision though so that may not be possible. As a matter of fact it sounds like they didn't address the evidence at all, just made vague conclusions about it. Am I right?

Can't remember if I asked this before. But did you ever appeal or reopen?

[Rockhound]

Rockhound,

Thanks for the heads-up e-mail. Hope this is the post you were referring to, if not, let me know.

As I said, I was looking through your posts to see if any evidence or med records had been misrepresented. That seems to me to be a key to proving CUE in cases decided before 1990. If you read through the decision and find that it makes a statement about the evidence that is clearly an error that might help. Sounds like they were as vague as possible on your decision though so that may not be possible. As a matter of fact it sounds like they didn't address the evidence at all, just made vague conclusions about it. Am I right?

Can't remember if I asked this before. But did you ever appeal or reopen?

Just to show you how hard it is for me to change, it took me almost a week just to realize that my post had been moved to this new forum page, but to answer your question, the evidence that the VA Rater implies is a part of my C-File is pure poppy cock, made up in his mind to support his own unsupported decision and as you suggest, had they addressed the evidence like they should have, I'm certain that the outcome would have been different.

I did appeal, but they came back with the same decision and I didn't have any evidence at the time that I knew of to rebutt their findings, plus you have to realize, I was battleing some pretty nasty demons at that time and didn't know as much about the system as I do today.

Hopefully now with my one SC claim being increased from 0% to 10%, I can spend more time on my other issues, of which CUE is but one and the most difficult to fight. So I will try to get another issue that was denied SC, only because the believed at the time, that their were no residual effects to consider, now I have evidence that supports, that their were and that it may also have been the cause of the personality disorder they saddled me with to begin with.

I'll be talking more about this in the days ahead as I try to gather more evidence to support my conclusion. This claim may take a bit longer to gather the necessary medical evidence than my previous SC claim, but in the end, I am just as sure that I will prevail, which in winning this claim will only support my CUE claim that much more.

Got to go and lie down, all this excitement over winning a round with the VA has left me somewhat drained of emotinal as well as physical strength, plus I have to be rested for tomarrow, Just got paid my SSDI and it's time for food shopping.

Jim