Vbn

[john999]

I posted at the VBN about my CUE. The heavy hitter (Cruiser) came on to tell me that any evidence in the VA's file is considered to have been reviewed even if they never mention it in your decision. I pointed out the absurdity of that since the VA could then choose to ignore any evidence they have they don't like such as SMR's. Am I nuts or something? Where is due process in this. Also this Cruiser guy said I had a whole year to appeal, so CUE is shaky. That is the point of a CUE. You can go back after a final decision to correct glaring error. Why bother to submit IMO's if the VA can just ignore them, and never refer to them in the decision?

[WhoopAssSmitty]

John/Terence999,

This is what you posted on the VBN and it's also why you got alot of flack about it.

"If the VA had a medical report in their possession that they did not include as evidence or even review when they made a decision could that be a CUE. It would be the same principal as if the VA had your SMR's but did not include them as evidence when rendering a decision on service connection. If the VA had of included the medical report in question it is pretty clear that it would have made a major difference in the rating percentage. This is a very old claim that became final in 1974. I already had a DRO Hearing on this subject and the DRO said the excluded evidence would have made a difference, but it means a large retro payment to me and my lawyer. The lawyer did the CUE for me. He was very careful not to present it as an evaluation of existing evidence."

You asked about the CUE and were given full, indepth replies as to what a CUE is and if your claim would have much of a chance.

You were told and even given a definition what a CU & E means:

CU & E means: CLEAR AND UNMISTAKABLE ERROR on the part of the VA and or the RATER at the time of the decision!!

You have to prove, beyond a shadow of a doubt, that what was done to you or your claim, or both was of gross negligence and or malicious actions by the VA, rater, etc........

Again, just because you've got a lawyer behind you and your claim, don't mean it's a CUE and it don't mean you're going to win your claim.

Your day to file your NOD or APPEAL was in 1973/1974. Since you, nor your VSO didn't do it, it's going to be very difficult for you and your mouth piece in a suit-lawyer to win.

Again, at some point and time, the vet has to step up and take responsibility for his/her actions/reactions and or lack there of!

Just because some document was not mentioned, does not mean that it wasn't included in your claim.

By the way, by your own admission, you said that "VA has this documentation in their posession" so, the rater/DRO/BVA will have to consider this as already viewed evidence!

You openly ADMITTED VA HAS IT IN THEIR Posession. So you and your lawyer are trying to get something for nothing and are just clogging up an already over burdened system.

(Perhaps the VA's lawyers should file against you and your lawyer for fraud!)

So, your choices are now: you'll either have to come back with "NEW" supportive evidence or you'll have to reopen the claim and try and get a rating increase.

But a CUE, you do not have and you've no chance of winning.

As to bashing any of the Veterans boards, you should really leave that alone.

Fact is, any and all of the vet boards, who offer vets, their family or widow(er) assistance and guidance, are very much needed and should be supported, not run down or anything else negative, be that by yourself or anyone else! If you don't like what you read, then move on or don't post.

The VA Bashing, is also a dead horse. We all know the system is by far from perfect, but it's improved leaps and bounds!

You don't believe me, ask any NAM VET or a WWII or Korean war vet, they'll confirm it's alot better. (It's also the only system we have going for us disabled vets!)

Sure there's room for improving and it's something all of us and any org that supports vets are working for!

Again, it's also the only system we have.

There's incompetence in every business around the globe, be that in a civilian sector or in government ran offices, we just have to try and fix the issues, one step at a time. Starting with the management on down.

FYI; this is also something you have to see and accept, there are some good, dang fine men and women who work inside the VARO's and VAMC's who are professionals and are dedicated to helping and providing the best service possible for the vet!

Next, you also wrote in one reply to me:

"I don't believe you know what you are talking about. I will wait for my lawyer to get the decision. Do you even understand the nature of why people file CUE's?"

My reply is: "Yes, as you've seen in my definition what a CUE is to you, I do know what it is."

The question is despite everyone telling you exactly what a CU & E is, you don't seem to understand and do not want to listen to reason or logic, do you not grasp what's being said??

So do you know, or better said, do you understand what YOU'VE read or what's being said to YOU?????

As Cruiser and myself pointed out to you, your claim does not have a CUE in it. No matter how much you rant and rave or just want to stir things up.

What you have is your failure to file your NOD; APPEAL and now you and your lawyer are trying to chalk up a CUE on your mistakes of nearly 40yrs ago and hope that enough dust has grown on your claim, to chalk up a nice little win for you and your lawyer.

Trust me, if you had a CUE, I'd be more than willing to say "go for it, more power to you, best wishes!" So would just about anyone else!!

However, you don't have a CUE and don't seem to have a clue about what a CUE is!! Nor do you or you lawyer seem to understand what one supports/requires!

It seems all your doing is trying to get something for nothing! Due to your negligence, inactivity, etc.....which in the end, comes back to blatantly scream at you and everyone else who reads what you've posted:

"IT'S YOUR FAULT, YOU didn't file your NOD; so YOU HAVE TO ACCEPT THE RATING DECISION OF 1974!"

NO CUE!!

Just your lack of reaction and allowing the 12 months to expire, after the rating decision was given!

So, all you'll end up getting is another DENIAL and you'll see and have to again accept that the rating decision is final.

See, here again is the prime example of what I've been telling you:

Here's a reply from Cruiser to you:

"First of all a C&UE is never based, in whole or in part, on anything that is "new" or anything that was not part of the original decision. That's the crux of C&UE, that the decision was clearly and umnistakably erroneous based on the evidence of record. If there is "new" evidence or evidence that was not considered, it's a reopened claim, not a C&UE claim."

Then you responded with: "Where does it say that all evidence of record is assumed to have been evaluated? I want to see that regulation. Give me the citation."

Your wish was granted: Cruiser gives you Bible verse and chapter from the CFR:

"38 CFR, Part 3, Subpart A, Sec. 3.104

Finality of decisions."

(a) A decision of a duly constituted rating agency or other agency

of original jurisdiction shall be final and binding on all field offices

of the Department of Veterans Affairs as to conclusions based on the

evidence on file at the time VA issues written notification in

accordance with 38 U.S.C. 5104.

What this means is that at the time VA sends you a letter notifying you of a decision on a claim, all evidence that is in your claims folder on that date is considered to have been a part of that decision. I suggest that you look up a few Court cases on C&UE and read them in order to get a better idea of exactly what a C&UE is, and isn't."

Perhaps you and your lawyer would do better to reopen your claim, even file new evidence and get new medical opinions, to support your rating increase.

For those who want to read, here's as Paul Harvey said "the rest of the story!"

http://vets.yuku.com/topic/24374

Trust me, this isn't to try and bust your chops, it's just that the circus that's being created by the use of lawyers and their shotgun patterns, is sickening. Just chunk anything out there and see if we can get a hit and a pay day. That's all that's being created and it's also the thing that's going to cause the rating system to get even more lengthy and difficult.

Schamming and Scamming with the lawyers, is just going to create even more difficult situation to an already over loaded system!!

JMHO

Whoop

[Tbird]

closing this topic

I posted at the VBN about my CUE. The heavy hitter (Cruiser) came on to tell me that any evidence in the VA's file is considered to have been reviewed even if they never mention it in your decision. I pointed out the absurdity of that since the VA could then choose to ignore any evidence they have they don't like such as SMR's. Am I nuts or something? Where is due process in this. Also this Cruiser guy said I had a whole year to appeal, so CUE is shaky. That is the point of a CUE. You can go back after a final decision to correct glaring error. Why bother to submit IMO's if the VA can just ignore them, and never refer to them in the decision?