Dro Hearing Friday 10/24, Possible Cue Question

[Quint7]

I have my DRO in person hearing in Buffalo on Friday.

Quickly, the topics are:

*Gain SC for my IVDS

*Get a full IVDS exam as spelled out in the VA Training Letter and C & P exam worksheet as opposed to just a ROM test.

*Increase my knee from 10% (mild) to 20% (moderate) disability

And now the tricky part...... I am going to request that my knee get rated at 10% back to my discharge in July 1994.

I am going to state that VA committed a CUE due to failing to notify me of a C&P exam in July 1994 (they gave me a 0% since there was evidence of a problem, but I was a no show. I have been 10% since 2007).

According to the VA my letter was undeliverable. They have the envelope that was returned (although they didn't include it in my free copy of my Cfile a few months ago!) in 1994 as undeliverable.

I have two envelopes, one my DD214 delivered to the same address 3 weeks before the C&P letter "couldn't" be delivered, the other an official college transcript delivered 2 weeks after the C&P letter.

I also have proof that I went to the VAMC for a Persian Gulf exam 10 days before the undeliverable letter.

There is no mention of a phone call to my apartment then, yet VA tried to contact me at that number 13 years later(!) to go to a C&P.

I also have read previously a case called Hyson vs. Brown from 1993 I believe (can't find the case again) that said that if a vet cannot be contacted and it is immediately after discharge, the VA should contact the vet's former unit and/ or next of kin to attempt to get in touch. (It also says the VA shouldn't be expected to move heaven and Earth to track down a vet, but must make an attempt).

I'm just wondering if I have a good case. The outcome of the CUE I would like to see is a 10% EED for the knee as there is more than enough evidence of a problem at the time of my discharge.

Any inoput and if anyone has any way to get the case of Hyson Vs. Brown (I think it was 1993) that would help!

Edited October 21, 2008 by Quint7

[carlie]

Quint,

Here's the rule on failure to report.

I feel your original claim would fall under the first sentence of section b.

carlie

http://ecfr.gpoaccess.gov/cgi/t/text/text-...205&idno=38

§ 3.655 Failure to report for Department of Veterans Affairs examination.

(a) General.

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or © of this section as appropriate.

Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

(b) Original or reopened claim, or claim for increase.

When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

© Running award. (

1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under §3.951(b) of this part, reduced to the lower evaluation.

Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights.

The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later.

(3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred.

The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

(4) If within 30 days of a pretermination notice issued under paragraph ©(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in §3.105(h)(1) of this part.

If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph ©(3) of this section shall apply.

(Authority: 38 U.S.C. 501)

Cross References: Procedural due process and appellate rights: See §3.103. Examinations: See §3.326. Reexaminations: See §3.327. Resumption of rating when veteran subsequently reports for VA examination: See §3.330.

[55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993]

[carlie]

Quint,

Here's a little somethig I found on Hyson v Brown, but even this still leaves the burden of the correct address on the veteran.

Hope this helps,

carlie

http://www.nvo.org/phpbb3/viewtopic.php?f=6&t=1208

Initially, the Court observes that it is certainly true that when a notice letter is returned unclaimed, the Secretary must check the claimant's file to determine if another notice letter needs to be sent.

See, e.g., Armendariz-Mata v. U.S. Dept. of Justice, Drug Enforcement Admin., 82 F.3d 679, 683 (5th Cir. 1996) ("When the government sends notice by mail, however, the proper inquiry is not simply whether the government sent the notice, but whether it acted reasonably under all the circumstances in relying on the mail as a means to appraise the interested party of the pending action.").

If the file reveals that the address used was incorrect or has been updated, then the Secretary must resend the notice to the proper address. However, the onus is on the claimant to have a reliable address for receiving notice and to keep the Secretary informed of the address. See Hyson

v. Brown, 5 Vet.App. 262, 265 (1993) (holding that "n the normal course of events, it is the burden of the veteran to keep . . . VA apprised of his whereabouts."). It is not the responsibility of the Secretary to act as a private detective to investigate the whereabouts of a missing person.

The appellant has not presented a convincing argument as to how due process could require the Secretary to contact a claimant's parents in search of him unless it amounts to a general duty to search for a claimant who cannot be reached at his address of record.

First, the appellant has not established a compelling reason to limit the Secretary's alleged constitutional duty to parents of claimants. Of course, parents of claimants might reasonably be expected to know a claimant's current whereabouts. However, the same is true of siblings, physicians, former spouses, persons who have submitted lay statements on behalf of the claimant, and others whose addresses might be in a claims file.

Logically, if due process requires that the Secretary make inquiries with a claimant's parents, it also requires inquiries from any person in the claims file who might reasonably know where a claimant is. Second, there is no dispute that if the government's notice efforts result in new information, then the government must consider that information to determine if further efforts are required. See Armendariz-Mata, supra. Hence, if a response to such an inquiry results in a list of yet more individuals who might reasonably know where the claimant might be, then the Secretary would then be obligated to contact such people.

Accordingly, to accept the appellant's argument that the Secretary was obligated to inquire with the appellant's parents about his possible whereabouts would require us to accept the proposition that due process includes a general obligation for the Secretary to track down a claimant who has not provided the Secretary with a reliable current address.

Although nothing would prevent the Secretary from making these or other efforts to locate those who failed to keep him informed of their whereabouts, such efforts are not required by the due process clause.

In support of his argument, the appellant relies upon Small v. U.S., 136 F.3d 1334, 1338 (D.C. Cir. 1998). However, Small is distinguishable.

In Small, the government failed to follow up when a notice of a civil asset forfeiture proceeding was returned undelivered.

However, in that case the government knew of the whereabouts of the property owner, as he was in jail on criminal charges related to the civil proceeding.

The notice letter was returned stating that the property owner had been transferred to a different confinement facility.

Under those circumstances, the U.S. Court of Appeals for the District of Columbia Circuit held that "if the United States has some additional piece of information that a reasonable person would use to locate the claimant, it is obliged under Mullane to try again, unless it would be burdensome to do so." Small, 136 F.3d at 1338. Small is merely an application of Mullane in a unique factual circumstance. The essence of Small is that when the government knows the whereabouts of a person (indeed when the person is in government custody), due process requires the government to actually find and deliver notice to the person.

Ceasing notice efforts based on a response that the person has been moved to another facility is plainly unreasonable.

Small recognized, however, that the government is not required to engage in a "burdensome" search for a property owner.

In fact, Small specifically stated: "Of course, if sending the letter again would require an 'impracticable and extended search[]' for its addressee, Mullane, 339 U.S. at 317, . . . then a reasonable person would not try again, and due process does not require another attempt." 136 F.3d at 1337.

Turning to this case, Small is consistent with our conclusion.

The claimant was an adult not in government custody.

He had provided VA with the address to which correspondence regarding his VA benefit should be sent and VA correctly sent the notice to the address provided.

It is not reasonable to require the government in such a circumstance to search for Mr. Lamb by contacting persons known to have had prior contact with him.

Consequently, we must conclude that the Secretary fulfilled his dutyto notify Mr. Lamb of both the examination and the suspension of benefits; there was no violation of Mr. Lamb's Fifth Amendment due process rights; and the 1957 RO decision is final.

B. The Appellant's Motions to Revise the 1957 RO Decision Based on CUE

Based on our conclusion that the 1957 RO decision is final, it may be collaterally attacked

through a CUE motion. The Board found that the CUE motion lacked specificity and dismissed it.

The Court disagrees. The appellant’s allegations of CUE are at best muddled. However, the Court

believes that on close examination his April 2005 submission to VA actually alleged two separate

bases for CUE in the 1957 RO decision. In dismissing the appellant's allegations of CUE, however,

the Board did not discriminate between these allegations. The Court, however, will address both.

Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (each CUE theory is a separate matter).

In his April 2005 submission to VA, appellant's attorney (the same who represented him

before this Court) articulated the CUE arguments in their entirety as follows:

[Quint7]

Carlie , that is the case that keeps popping up when I was searching this weekend. At one time I had a link to the actual Hyson case but that page is now charging for access.

From what I remember, claims filed immediately at discharge or within one year fall under a different set of rules as far as the effort VA must make to find the veteran. I will keep looking.

That other post about using the available evidence is very useful!!!!!! I was surprised that my SMR alone were enough for the 10%, but as I have told VA and othres, I was so busy trying to adjust to civilian life, go to college, find a job, pay rent and from what I now know deal with fairly severe PTSD that I forgot that I ever filed a claim with VA.

I am hoping..... HOPING!!!!...... that the DRO will be a person a normal intelligence who can use common sense. I think that if I handed you my records along with an hour of time to review them you and any other normal person would agree with me on all counts.

[carlie]

Quint,

There is a different rule for original claims filed within one year of discharge,

BUT it has nothing to do with the VA having to locate the veteran.

carlie

[Quint7]

Carlie, I think that is one of the things addressed in that Hyson case. If I remember right, if the vet filed a claim immediately after service or within one year (not sure if both), and mail to the vet is returned as undeliverable it is expected that the VA then at least review the Service Record for the vets last unit and/or next of kin and attempt to make contact with them as to how to contact the vet. It said that while this would be a reasonable burdon to place upon the VA but that VA should not be expected "to move heaven and earth" in this attempt to find the vet.

Like I said, they didn't even try to call me as far as I know back in 1994.

I still do agree that the way to approach it is that I was never given this mystery exam quoted in the decision.

Man I would like to see that whole Hyson case again.........

Edited October 22, 2008 by Quint7

[Ricky]

After reading this a couple of times I have just a couple of thoughts:

Carlie and Berta are right on the CUE for the non-notice of a C&P - it will not hold water.

This mystery exam - keep in mind that when the VA refers to a VA C&P exam they call it just that or "upon examination" - they do not do clinical evaluations for a C&P exam nor do they refer to it as a clinical evaluation (sounds to me like they were referring to the clinical evals done by the military) - just make sure you check your medical records. From my reading this post there has been no mention of limited ROM etc.... merely a diagnosis which would allow the VA to use the wording they used. You can have all the torn knee parts you want but without an exam where ROM and its limitation ie flexion etc...... you will get a service connected ruling but a zero percent rating. So just get your ducks in order.......study the smr's for such an exam for without it you are still barking up a tree. Does your exit physical expand on it or does it just say torn..........

My post is not to dampen your spirit - but I hope it does make you do your homework!

Edited October 22, 2008 by Ricky