Bell V. Derwinski Used To File Cue

[Bossman]

Berta and Rentalguy1, I did something today to try it and see if it could be done. I filed a CUE based on the constructive-notice rule of Bell v. Derwinski, 2 Vet. App. 611 (1992).

There is medical evidence in my records that should have increased my compensation and it has been there for 11 years. I have filed claims a couple times for increase but have been denied. There is evidence in my C-File that show that the information has been there.

It is my hope to bring attention to what is happening here in Atlanta, GA. I have file a 21-4138 to request a hearing to fight an adverse proposal. I submitted it at the end of January 2007 but it was stamped August 2007 several months after submitted (Denial of Due Process). I submitted a request for a Denovo Review (CUE,because the medical information is there to support an increase)in June 2007 before the reduction or a SOC. I did not receive either. All of this happened in 2007. And all of this happened before the reduction.

I am also considering getting my local Newspaper involved (the AJC). I know that this will cause some delay in my decision from a DRO hearing in October of 2008 but I thhink that it is important to try to bring attention to what is happening here in North Georgia.

Is there a good chance that this will suceed? It sounds good.

By the way I was awarded SSDI this month. VA denies that there is loss of use of right leg. They deny that I had surgery on both SC knees eventhough they have a copy of the surgery summary and a letter from the Doctor stating that I had knee surgery.

[tssnave]

Bossman,

What was the basis for your reduction? For those of us not familiar w/ your case, can you give a brief timeline of events?

Thanks,

TS

[cowgirl]

Bossman, yes, your case sounds very interesting and could be of help to others of us here.

I have file a 21-4138 to request a hearing to fight an adverse proposal.

What do you mean 'adverse proposal'?

I submitted it at the end of January 2007 but it was stamped August 2007 several months after submitted (Denial of Due Process). I submitted a request for a Denovo Review (CUE,because the medical information is there to support an increase)in June 2007 before the reduction or a SOC. I did not receive either. All of this happened in 2007. And all of this happened before the reduction.

Sounds like your claim was incorrectly dated.. Sounds like you requested a DeNovo review. Sounds like you did get a reduction. Sounds like you didnt get a SOC.

Do you have a copy of your Cfile that shows the details?

Sounds like you do not have a decision from a DRO hearing in October of 2008

By the way I was awarded SSDI this month.

Congratulations, did you apply for IU? and if the VA denied you? how so? Are your leg and knees service connected?

Bossman, Sounds like you are willing to work to get whats due, good luck and let us know,

Cg'up2009!

[Ricky]

There is medical evidence in my records that should have increased my compensation and it has been there for 11 years. I have filed claims a couple times for increase but have been denied. There is evidence in my C-File that show that the information has been there.

Just to look at it from a legal view: How do you know it was not it was not reviewed? Remember, the use of and weight assigned to medical evidence is a judgement call of the rater. Judgement calls are not subject to CUE.

Bell opened the doors for veterans in that it forced the VA's hand to ensure that all medical evidence was gathered and reviewed. In simple terms if a vet was filing a claim for actual loss of a limb and he/she was denied and then it was learned that the VA was in possession of his/her medical records from Walter Reed indicating that they had lost the limb in combat, however the RO failed to request the records - the mere fact that the records were in the VA system calls for Bell to come into play.

A loss of a limb situation is an easy fix under Bell, however, a claim for x medical condition, where the supposed medical evidence is in the CFile and a claim by the veteran that it was not used gets a little fuzzy as the VA can simply claim the "judgement call" card. At this point it will be an UPHILL battle trying to prove other wise. That is unless it is a situation where the issue at hand is very clear ie..... vet claims his disability has increased due to the fact his knee has had to be completely fused - the va then says no it has not - then the vet says yes it is take a look at the medical records in x VAMC cause they are the ones who did the surgery, could not fix it so they fused it.

Sorry to ramble but just wanted to let you know that if your disability and its increase are not clear cut and if the medical evidence you are attempting to pull in under Bell is not clear cut then you are going to have a long haul with such a CUE claim.

Edited January 15, 2009 by Clown Man

[john999]

If you evidence is not listed there is no way to tell if the VA reviewed it ,or did not review it. That is a basic flaw. You say how does the Vet know the evidence was not reviewed? How does the Vet know it was reviewed? The VA says just trust us. Trust but verify. How can you verify if the evidence is never listed or mentioned in the decision? It seems to me not listing evidence is the CUE. That is not the same as weighing it. If they dont' list it there is no way to know if they weighed it. This leaves the vet in No Man's Land. In my own case the VA said I had a mild disability based on their VA records. My doctor said I had a severe disability and was unemployable. My doctor's report was never listed or mentioned in the decision. They did not weigh the evidence. They just never even considered it. The fact my doctor said I was unemployable should have been an inferred claim for IU.

[Bossman]

Bossman, yes, your case sounds very interesting and could be of help to others of us here.

I have file a 21-4138 to request a hearing to fight an adverse proposal.

What do you mean 'adverse proposal'?

I submitted it at the end of January 2007 but it was stamped August 2007 several months after submitted (Denial of Due Process). I submitted a request for a Denovo Review (CUE,because the medical information is there to support an increase)in June 2007 before the reduction or a SOC. I did not receive either. All of this happened in 2007. And all of this happened before the reduction.

Sounds like your claim was incorrectly dated.. Sounds like you requested a DeNovo review. Sounds like you did get a reduction. Sounds like you didnt get a SOC.

Do you have a copy of your Cfile that shows the details?

Sounds like you do not have a decision from a DRO hearing in October of 2008

By the way I was awarded SSDI this month.

Congratulations, did you apply for IU? and if the VA denied you? how so? Are your leg and knees service connected?

Bossman, Sounds like you are willing to work to get whats due, good luck and let us know,

Cg'up2009!

Thank you for your response Cowgirl,

An Adverse proposal see http://www.warms.vba.va.gov/M21_1MR.html#a part 1 Duty to assist, Chapter 2, section B. My request for a hearing was submitted within 7 days, they stamped it almost 7 months later according to VA. The copy in my C-file look to me to be March 7, 2007 not August. My adverse proposal letter was dated January 18, 2007.

No, I do not have any communication from the October DRO hearing. Once they found that Due Process was denied they managed to get a hearing scheduled in 7 days but they can not give me a response in 3 months.

I also have a form 9 pending from November 2006, I also know that they can not or will not schedule my BVA until the SOC is issued. Since I have been waiting since 2004 for VA to close out my complaint some more time is not really a big deal right now. The information that they are not considering or looking at has been in my VA medical records and C-file since 1998. That is 6 years before I filed. I am SC for my knees.

I filed for IU almost 2 years ago. VA denied me becasue they said that I needed 60% with only one SC disability or one SC disability with 40% for more than one disability. I have several and a total of 70% after the reduction and then the increase. I pointed out paragrapgh B but VA could not understand what I ment by that. One of the things that they are denying me on is 60%, a VA doctor said that the cause of my knee problems may be from the systemic absorption of the prescription presribe to me by VA for a skin condition. Title 38 for eczema states that 12 months is 60%. VA has had me on this prescription since 1986.

[Bossman]

There is medical evidence in my records that should have increased my compensation and it has been there for 11 years. I have filed claims a couple times for increase but have been denied. There is evidence in my C-File that show that the information has been there.

Just to look at it from a legal view: How do you know it was not it was not reviewed? Remember, the use of and weight assigned to medical evidence is a judgement call of the rater. Judgement calls are not subject to CUE.

Bell opened the doors for veterans in that it forced the VA's hand to ensure that all medical evidence was gathered and reviewed. In simple terms if a vet was filing a claim for actual loss of a limb and he/she was denied and then it was learned that the VA was in possession of his/her medical records from Walter Reed indicating that they had lost the limb in combat, however the RO failed to request the records - the mere fact that the records were in the VA system calls for Bell to come into play.

A loss of a limb situation is an easy fix under Bell, however, a claim for x medical condition, where the supposed medical evidence is in the CFile and a claim by the veteran that it was not used gets a little fuzzy as the VA can simply claim the "judgement call" card. At this point it will be an UPHILL battle trying to prove other wise. That is unless it is a situation where the issue at hand is very clear ie..... vet claims his disability has increased due to the fact his knee has had to be completely fused - the va then says no it has not - then the vet says yes it is take a look at the medical records in x VAMC cause they are the ones who did the surgery, could not fix it so they fused it.

Sorry to ramble but just wanted to let you know that if your disability and its increase are not clear cut and if the medical evidence you are attempting to pull in under Bell is not clear cut then you are going to have a long haul with such a CUE claim.

Thanks for your Response Clown Man,

When I requested the DeNovo Review I also requested a SOC if the review was unfavorable to me. See Below.

Under the constructive-notice rule of Bell v. Derwinski, 2 Vet. App. 611 (1992), may the failure of an agency of origi­nal jurisdiction (AOJ) to consider pertinent Department of Veterans Affairs (VA) medical records in existence at the time of its prior final decision constitute clear and unmistakable error, even though such evidence was not actually in the rec­ord before the AOJ?

a. With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an AOJ’s failure to consider records which were in VA’s possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error, if such failure affected the outcome of the claim.

My information meets this criteria and Section 4.118 of Title 38 sets the rule.