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Bell V. Derwinski Used To File Cue

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Bossman

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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.

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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.

Good luck my friend.

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  • HadIt.com Elder

How about this case: The VA has evidence in the record that the veteran is IU, and incapcitated due to his SC condition and never addresses this issue at all. They don't reject IU. They don't even condider it. I believe the VBM says this is an inferred claim for IU and not considering it is a CUE.

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