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

[Berta]

I hope you still have the old decision.

The CUE needs the date of that decision.

A wrong diagnostic code or a lack of proper diagnostic code that affects a rating in a detrimental way is a CUE.

Just tell VA

"

This is a claim under 38 CFR 3.400,and 38 USCS 5109A, as I believe the VA made a clear and unmistakable error in their final decision dated ( date) by giving me the Diagnostic Code of ______ which did not properly reveal the extent of my scarring and residual disabilities from it.I should have been given the Diagnostic code of _____ which would have granted a compensable rating to me, and thus manifestly would have changed the outcome of that decision.

I have enclosed the following evidence:

(or tell them if they did NOT even use any diagnostic code at all.

The VA must code and rate all disabilities they are aware of.Dont have the reg for that yet-will look for it-I used that reg in my CUE.

Go to the schedule of ratings for scars and look up the proper DC that your medical evidence matched at time of this decision.Put this code in the CUE above and refer them to

Evidence:

1. Cite M21-1 thus:

"M21-1, Part VI March 19, 2004

Change 113

Rescission: Changes 106 and 108.

3.09 ISSUE

a. General. Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim. If there is more than one issue, list the issues by number. In RBA, the issues appear under the identifier “ISSUE.” In RBA 2000, the issues appear under the identifier “DECISION.”

b. Compensation Ratings. Consider all claimed disabilities in the rating decision. Also consider all chronic disabilities found in the service records even if they were not claimed. This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision. Do not consider any of the following conditions unless specifically claimed:

(1) Acute and transitory disorders without residual disability;

(2) Noncompensable residual disability from venereal disease;

(3) Disabilities noted only on an induction examination, or disorders recorded by history only;

(4) Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and

(5) Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection.

3.10 INFERRED ISSUES AND ANCILLARY BENEFITS

An issue is sometimes derived from the consideration or outcome of a related issue."

2. attach the rating schedule print out for the scar (I dont think scar ratings have ever changed)

3. and then cite and attach EStaban V. Brown-

(or put in a link to it in your claim-I think you are looking for DC 7800 and DC 5325 and should put that into the blank above )

If you had muscular involvement due to the injury Refer them to and cite Myler V Derwinski-one of the best CUEs ever won and generating retro back to 1953-

and say they committed CUE by also failing to take muscular damage into consideration when they gave the diagnostic code on the scar.

I posted that CUE here and there was much discussion on Myler sonmetime ago at hadit

I haven't found it here yet.

Muscular Group Injurys DCS are complex and are thoroughly discussed in the VBM-I cannot post lengthy excepts from the VBM but this is raised in Estaban -and excellent read for similiar claims.

I think Ricky has a good point on the 100% temp too-

I havent figured out how to word that part yet-

You could simply state that you should have been rated for a temporary 100% hospitalization in (date) as well and the VA failed to consider you for that benefit.

(I dont know if that will work-as I understand the temp regs-the veteran must make formal claim for this benefit or someone from the VAMC (such as a VSO) must file this claim formally.There might be a time limit on Temp 100% claims.)

[Berta]

I hope you still have the old decision.

The CUE needs the date of that decision.

A wrong diagnostic code or a lack of proper diagnostic code that affects a rating in a detrimental way is a CUE.

Just tell VA

"

This is a claim under 38 CFR 3.400,and 38 USCS 5109A, as I believe the VA made a clear and unmistakable error in their final decision dated ( date) by giving me the Diagnostic Code of ______ which did not properly reveal the extent of my scarring and residual disabilities from it.I should have been given the Diagnostic code of _____ which would have granted a compensable rating to me, and thus manifestly would have changed the outcome of that decision.

I have enclosed the following evidence:

(or tell them if they did NOT even use any diagnostic code at all.

The VA must code and rate all disabilities they are aware of.Dont have the reg for that yet-will look for it-I used that reg in my CUE.

Go to the schedule of ratings for scars and look up the proper DC that your medical evidence matched at time of this decision.Put this code in the CUE above and refer them to

Evidence:

1. Cite M21-1 thus:

"M21-1, Part VI March 19, 2004

Change 113

Rescission: Changes 106 and 108.

3.09 ISSUE

a. General. Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim. If there is more than one issue, list the issues by number. In RBA, the issues appear under the identifier “ISSUE.” In RBA 2000, the issues appear under the identifier “DECISION.”

b. Compensation Ratings. Consider all claimed disabilities in the rating decision. Also consider all chronic disabilities found in the service records even if they were not claimed. This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision. Do not consider any of the following conditions unless specifically claimed:

(1) Acute and transitory disorders without residual disability;

(2) Noncompensable residual disability from venereal disease;

(3) Disabilities noted only on an induction examination, or disorders recorded by history only;

(4) Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and

(5) Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection.

3.10 INFERRED ISSUES AND ANCILLARY BENEFITS

An issue is sometimes derived from the consideration or outcome of a related issue."

2. attach the rating schedule print out for the scar (I dont think scar ratings have ever changed)

3. and then cite and attach EStaban V. Brown-

(or put in a link to it in your claim-I think you are looking for DC 7800 and DC 5325 and should put that into the blank above )

If you had muscular involvement due to the injury Refer them to and cite Myler V Derwinski-one of the best CUEs ever won and generating retro back to 1953-

and say they committed CUE by also failing to take muscular damage into consideration when they gave the diagnostic code on the scar.

I posted that CUE here and there was much discussion on Myler sonmetime ago at hadit

I haven't found it here yet.

Muscular Group Injurys DCS are complex and are thoroughly discussed in the VBM-I cannot post lengthy excepts from the VBM but this is raised in Estaban -and excellent read for similiar claims.

I think Ricky has a good point on the 100% temp too-

I havent figured out how to word that part yet-

You could simply state that you should have been rated for a temporary 100% hospitalization in (date) as well and the VA failed to consider you for that benefit.

(I dont know if that will work-as I understand the temp regs-the veteran must make formal claim for this benefit or someone from the VAMC (such as a VSO) must file this claim formally.There might be a time limit on Temp 100% claims.)

[Berta]

Some discussions of Myler are in the search feature but I might have posted Myler on the old board-

Both Myler and Estaban are at the CAVC web site.

Clear and undisputable evidence factors into UE claims - this is a strong point that NVLSP made re: Myler

"Myler was assessed by NVLSP as a "failure to assign a disability rating that was required by the clear and undisputed evidence of record."

You could use that quote too if you want but Cite the National Veteran's Legal Services Program, Veterans Benefits Manual 2007 Edition.

[Mcafee]

Hello All Hope All Is Well. I can not Thank You enough Berta for your efforts This is what I have from original VA Decisions to BVA Decisions. There are differences or is it just me ?

[Mcafee]

In Addition to while on Active Duty 50 days of Hospitaliztion plus surgery this is what they applied to there decision if Iam incorrect please let me know?How is it that i did not meet this criteria?

§4.31 A no-percent rating.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

[29 FR 6718, May 22, 1964, as amended at 58 FR 52018, Oct. 6, 1993]

Supplement Highlights reference: 6(1)

[Mcafee]

I still do not have a clear picture as to proceed due to the nature of this error and the regulations of the time.Inow know that Title 10 shoulkd have been in place before discharge this was not done and is US Army responsibility,However 50 days Hoapitalization and surgery plus scarring.I dont knoe Iam so sorry but I still dont get it. Thank You Is It possible to Contact Publication of VBA or VA materials or Regulations to find out the correct applications of the time?