Clear Unmistable Error Cfr 3.105a

[Mcafee]

Hello all hope all is well. I am having a difficult time as to how to broach this claim. Do I file it with VARO or do I file it with BVA.This is an unappealed decision made by BVA back in 1980 for service connection and compensable.In other words BVA denied this when I filed for an increase or service conection and I never followed up or pursued it any further.Now the Question I have is, Knee surgery while in the military spent 50 days in the hospital and yet when I was discharged never received any compensation for this until 1982 is my award letter for 10% for musculolskelatel condition according to this award letter.However while in the service both knees were check for this injury and both knees went through rehab only one had surgery reason (Osteochondral fracture with dislocation to the patella) it took most of the fall during combat exercise at night.And in SMR this is well documented from Physical theraspist and Physician and yet VARO never honored the service connected injuries or condition? (VARO called it post operative residuals?)I do know of the USC Title 10 code for no soldier shall be discharged without a Compensation and pension in place or offered prior to discharge from Active Duty.But that pertains to the US ARMY LAW not VA LAW. Sorry for the long post and Thank You for Your help God Bless

[jbasser]

Start by looking at the 38 cfr and note the change date. It may not have changed.

What disorder are you considering CUE. Most Likely I can find it but I either need the Diagnostic code or the nomenclature of the disease.

ALso, if medical elvidence was omitted and it was part of the service record or a record in the service departmentsposession, You may be able to ask to be back dated tot he original date due to the change in effective date criteria 2 years ago. Rin am-0015. This rule may help you. It would be easier than filing a CUE.

J

Edited July 31, 2008 by jbasser

[jbasser]

Mcaffe, you also stated they did not use a Mental health eval on you fromthe SMR.

Is it in there and was it in there in 1978? If the amswer is yes and yes, Then there is your CUE.

The VA loves to say that you cannot file a cue based on how evidence was considered, However, this does not apply for Evidence in the record and not considered is a direct violation of 38 cfr.

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

[Mcafee]

I finally located this is the Code of Military Law. From the U.S. Code Online via GPO Access

[wais.access.gpo.gov]

[Laws in effect as of January 3, 2006]

[CITE: 10USC1218]

TITLE 10--ARMED FORCES

Subtitle A--General Military Law

PART II--PERSONNEL

CHAPTER 61--RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY

Sec. 1218. Discharge or release from active duty: claims for

compensation, pension, or hospitalization

(a) A member of an armed force may not be discharged or released

from active duty because of physical disability until he--

(1) has made a claim for compensation, pension, or

hospitalization, to be filed with the Department of Veterans

Affairs, or has refused to make such a claim; or

(2) has signed a statement that his right to make such a claim

has been explained to him, or has refused to sign such a statement.

(:P A right that a member may assert after failing or refusing to

sign a claim, as provided in subsection (a), is not affected by that

failure or refusal.

© This section does not prevent the immediate transfer of a member

to a facility of the Department of Veterans Affairs for necessary

hospital care.

(Added Pub. L. 85-56, title XXII, Sec. 2201(31)(A), June 17, 1957, 71

Stat. 160; amended Pub. L. 87-651, title I, Sec. 107©, Sept. 7, 1962,

76 Stat. 508; Pub. L. 101-189, div. A, title XVI, Sec. 1621(a)(1), (4),

Nov. 29, 1989, 103 Stat. 1602, 1603.)

Historical and Revision Notes

1962 Act

Sections 1218 and 1219 are restated, without substantive change, to

conform to the style adopted for title 10.

Amendments

1989--Subsec. (a)(1). Pub. L. 101-189, Sec. 1621(a)(1), substituted

``Department of Veterans Affairs'' for ``Veterans' Administration''.

Subsec. ©. Pub. L. 101-189, Sec. 1621(a)(4), substituted

``facility of the Department of Veterans Affairs'' for ``Veterans'

Administration facility''.

1962--Pub. L. 87-651 amended section generally, and among other

changes, substituted ``Discharge or release from active duty: claims for

compensation, pension, or hospitalization'' for ``Explanation of rights

before discharge'' in section catchline, and struck out provisions which

prohibited a person from being discharged or released from active duty

until his certificate of discharge or release from active duty and his

final pay (or a substantial portion of his final pay) are ready for

delivery to him or to his next of kin or legal representative.

Effective Date

Section effective Jan. 1, 1958, see section 2301 of Pub. L. 85-56,

71 Stat. 172.

[Mcafee]

I also think this applies. In this regard, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(:P.

To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(; VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004).

The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003).

When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153.

Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant, 17 Vet. App. at 131.

Miller v. West, 11 Vet. 345, 348 (1998) (holding that a conclusion written by a medical

professional without factual predicate in the record is not clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness)

[Berta]

RIN AM 0015 should be here at hadit under a search-

I attached 3.156 which basically explains it ---and J Basser- I am glad you brought up this point again-

this is an important facet of VA 101-

You might have a CUE or the RIN or 3.156 could be used instead as J Basser suggested.

CUE claims should be in my opinion- Prime Facie-

meaning if the CUE is stated right- it can be short and sweet and cover the whole claim-

I succeeded on a CUE which was only a few sentences in the past-

the appeal I am preparing for my 2 CUE claims states it all

on page one and then expands.

Most of the appeal is the legal evidence.

The CUES are stated basically in one sentence each,,supported by the exhibits.(solely legal evidence and why the legal evidence is probative to the CUE.)

I have to attach that reg in next post

RIN AM 0015 should be here at hadit under a search-

I attached 3.156 which basically explains it ---and J Basser- I am glad you brought up this point again-

this is an important facet of VA 101-

You might have a CUE or the RIN or 3.156 could be used instead as J Basser suggested.

CUE claims should be in my opinion- Prime Facie-

meaning if the CUE is stated right- it can be short and sweet and cover the whole claim-

I succeeded on a CUE which was only a few sentences in the past-

the appeal I am preparing for my 2 CUE claims states it all

on page one and then expands.

Most of the appeal is the legal evidence.

The CUES are stated basically in one sentence each,,supported by the exhibits.(solely legal evidence and why the legal evidence is probative to the CUE.)

I have to attach that reg in next post

[Berta]

This is an extremely important reg and everuy vet should read it over carefully

Newly_discovered_Service_Records_etc_2007.doc