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Is This Cue


Guest jstacy

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I had a c and p exam yesterday. I was allowed to view the service record and I found that I had been treated for Hypertension and Headaches in service. It was noted on the Separation physical exam.

Tyhe Denial letters used by the VA in 1994 and 1998 said the records were void of any hypertension or headaches. Could someone , Berta, or anyone who has won a cue claim reply to this post. I think it is a strong CUE nut I am not sure how to word the claim.

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I had a c and p exam yesterday. I was allowed to view the service record and I found that I had been treated for Hypertension and Headaches in service. It was noted on the Separation physical exam.

Tyhe Denial letters used by the VA in 1994 and 1998 said the records were void of any hypertension or headaches. Could someone , Berta, or anyone who has won a cue claim reply to this post. I think it is a strong CUE nut I am not sure how to word the claim.

John,

If the reference to "the records are void of hypertension and headaches" is about your service medical records, and assuming you have had treatment for this condition since you were discharged, then this is clearly undebatable error--as required for winning a CUE. The VA failed to consider service medical records to determine service connection. I wonder if they would go ice skating without skates?

You might want to read this:

2.10 CLEAR AND UNMISTAKABLE ERROR (38 CFR 3.105(a))

a. General. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A clear and unmistakable error also exists if VA overlooked material facts of record. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. An appellant is not entitled to raise again a "particular claim" of clear and unmistakable error once there has been a final decision denying that claim. If the clear and unmistakable error alleged is different from a clear and unmistakable error issue previously rejected, a rating is needed to determine whether or not a clear and unmistakable error was made on the new issue.

b. Denying Claims of Clear and Unmistakable Error. When clear and unmistakable error is alleged, it is first necessary to determine the precise nature of the claim. Claims of clear and unmistakable error will be denied by regional offices or BVA if they do not specify the factual or legal errors at issue. It must next be determined whether the error, considering the full record previously before the rating activity, would have changed the outcome at the time it was made. Errors that would not have changed the outcome are harmless and do not give rise to the need for revising the previous decision. Decisions based on the judgment of the rating specialist, such as the weight given to the evidence, cannot be reversed on the basis of clear and unmistakable error unless the decision is the result of misapplication of directives, laws, or regulations. A new medical diagnosis that "corrects" an earlier diagnosis ruled on in a previous rating is not to be considered an error in the previous rating.

Good luck!

Carrie

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This BVA claim - they remanded the Cue and everything-

the CUE has good basis -similiar to yours re: SMRs--

http://www.va.gov/vetapp00/files1/0006055.txt

but the BVA told the vet rep and the veteran what they need to do yet---

The date of the actual decision and the exact reg they broke has to be stated-at least the BVA didnt deny it-

In another BVA case-

"The Board notes that the RO later granted service connection

for cervical and lumbosacral spine disorders. But this

decision was based, in part, on the report of a July 2003 VA

examination, which found these disabilities were more than

likely related to military service. This medical opinion was

obviously not of record in August 1977 when the Board made

its decision. And furthermore, an April 2000 VA examiner

reached the opposite conclusion - that it was more than

likely that the veteran's back disorder was not related to

military service. So reasonable minds can and have differed

as to the etiology of his back disorder. But in terms of

whether CUE existed in the Board's August 1977 decision, only

the evidence of record at the time the decision was made is

considered. 38 C.F.R. § 20.1403(B)(1) (2004). A change in

medical diagnosis is not considered CUE".

you can see how tough they can be-

The SMRs have to clearly diagnose the same condition that was claimed in the original claim.

In your case -the evidence was not considered properly.

I would state that they broke:

38 C.F.R., Book B Adjudication 3.303-as found at:

http://www.warms.vba.va.gov/bookb.html#x

§3.303 Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations 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.

This BVA claim - they remanded the Cue and everything-

the CUE has good basis -similiar to yours re: SMRs--

http://www.va.gov/vetapp00/files1/0006055.txt

but the BVA told the vet rep and the veteran what they need to do yet---

The date of the actual decision and the exact reg they broke has to be stated-at least the BVA didnt deny it-

In another BVA case-

"The Board notes that the RO later granted service connection

for cervical and lumbosacral spine disorders. But this

decision was based, in part, on the report of a July 2003 VA

examination, which found these disabilities were more than

likely related to military service. This medical opinion was

obviously not of record in August 1977 when the Board made

its decision. And furthermore, an April 2000 VA examiner

reached the opposite conclusion - that it was more than

likely that the veteran's back disorder was not related to

military service. So reasonable minds can and have differed

as to the etiology of his back disorder. But in terms of

whether CUE existed in the Board's August 1977 decision, only

the evidence of record at the time the decision was made is

considered. 38 C.F.R. § 20.1403(:)(1) (2004). A change in

medical diagnosis is not considered CUE".

you can see how tough they can be-

The SMRs have to clearly diagnose the same condition that was claimed in the original claim.

In your case -the evidence was not considered properly.

I would state that they broke:

38 C.F.R., Book B Adjudication 3.303-as found at:

http://www.warms.vba.va.gov/bookb.html#x

§3.303 Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations 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.

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VA granted me a CUE for vision problems in 1999 stemming from a complaint filed in 1992. I believe the C&P examiners overlooked the extensive treatment that I had received in service to include referrals to Walter Reed and Bethesda Naval Hospital in the DC area.

So, take a close look at what’s in your file and what the examiners are saying in their report to the raters. I believe after I sent in a NOD after I reopened the claim in 1998, the rater reviewed my file then found the incorrect reports from the C&P exams. They called me at home, offered to increase and then sent out the agreed increase site a CUE. I just reviewed my c-file and the caller noted in his records the date he called me, what we discussed, and our decision.

I would suggest you obtain a copy of your C-file and it will provide valuable information to assist you with your NOD and if appropriate they will see the CUE.

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You are CORRECT! Great work on your successful CUE claim-

I had two past decision reversed on NODs- but definitely could have been CUED if not appealed-

I have two CUE claims presently at the VARO-

You are giving vets much needed adivise -that we cannot stress enough-

Look at your c files- get a copy of it if you cannot get to your VARO-

I am still astonished at what I found in mine.

Check the diagnostics codes in past unappealed decisions-

compare the rating they gave you -based on that DC-with the rating criteria in M21-1 and 38 CFR.

If you received an award under Nehmer -Agent Orange-

Definitely check the retro-

If you were denied for same AO condition in the past-(depending on the date of that denial and what your SC AO was for)

the VA might have snookered you-

Nehmer retro is unlike all other retro-

NVLSP (who won Beverly Nehmer's case -us widows can be quite persistent)

found that the VA had snookered over 2000 Nehmer AO vets and NVLSP forced the VA to pay them

"over $25 million in past due benefits." VBM 2005 edition page 605

I regret we have to become medical experts and legal beagles to fight with the VA.

I regret that we cannot depend on NSOs or vet reps to do much to help in most cases-

We are our best vet rep- unlike them we only have one or a few claims- for our selves-they have hundreds-

It is up to us as VA claimants to check and DOUBLE check every single statement , DC code, and date the VA uses in assessing and awarding our claims.

NVLSP found the VA snookered

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The effective date is definitely something every vet should check. The VA used the date home oxygen was ordered for my husband's effective date because the rating criteria includes home oxygen use as rated at 100%. But last week I found out that when the VA is notified of the vet's hospitalization for a service-connected condition, it is an informal claim. If a formal claim is filed within a year then the hospital admission date is the correct effective date. (If the vet is admitted to a nonVA hospital, then it applies only if it is a VA-authorized hospitalization.) For my husband, that was three months earlier; quite a bit of money was unpaid since he went from 10% to 100%. I have that NOD in the works now.

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I can't answer your question on CUE specifically but suggest you consider that what you are talking about is cardiovascular disease that is listed in 38 CFR 3.309 that is entitled to direct service connection and whch may at some time manifest itself as cardiovascular renal disease. One of Berta's recent posts mentioned this reg and V.A. law on this.

I had a c and p exam yesterday. I was allowed to view the service record and I found that I had been treated for Hypertension and Headaches in service. It was noted on the Separation physical exam.

The Denial letters used by the VA in 1994 and 1998 said the records were void of any hypertension or headaches. Could someone , Berta, or anyone who has won a cue claim reply to this post. I think it is a strong CUE nut I am not sure how to word the claim.

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I am thinking that you could state the clear and unmistakeable error in that old decision occurred by not properly adjudicating the claim with the proper diagnostic codes as found within 38 CFR-under the rating schedule for hypertension and migraines.

in essense the SOC you received at that failed to list these conditions -and even as NSC -that would at least have shown that they acknowledged them.

YES- I too see a strong CUE potential-

I am quite busy this week due to the holiday but will pull out a CUE I have at the VARO which is similiar to yours- please remind me if I forget to do this for you-

It involves a lack of any DC s or rating at all in an unappealed 1997 decision for my husband's severe heart disease. Although his heart disease was misdiagnosed by the VA for 6 years and I proved they misdiagnosed 3 years after he died- still my point was -since they did DC code his misdiagnosed stroke they had full knowledge of his heart disease-(a very tricky point I know but I cannot let it go- my other CUE is contingent on this one-

The regs I used - (I have to dig that out-might help you ) reflected the proper rating which the VA failed to state on the SOC.

To all -didnt I post some time back a CAVC CUE granted regarding lost or unavailable SMRs?????

Anyone remember that?

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