Questions On Filing C&ue Claim With An Eed. Circa 1969

[RSG]

I was wondering how I might determine if my claim was worth filing, for a CUE claim with an EED.

My BVA decision seems to indicate to me that a cue claim would be a reality in my case....

Maybe I'm reading it wrong, but I think the judge seems to think it may be vaild.....How to I go

about verifiyng wether or not this would be, by studying the deci sions he cited on my claim., or is

there something else I should look for....I was just denied My IU also....Got questions there too.

Tnx

[john999]

I got a letter today from the VARA saying my file is being held at the VARO for my travel service BVA board member hearing. They say it takes on average 400 days to get a travel board hearing. My lawyer will be there. This is my CUE going back to 1971. The teleconference BVA hearing takes over 500 days. The VARO keeps my file until the hearing and then it goes to the BVA. I hope I live long enough to get a decision.

If there is anything wrong with RSG's old claim he filed he should get it looked at by someone who can spot a possible CUE. Those old decisions were just awful from the 60's and 70's.

[Berta]

Larry-that sure was nice of you to tell me that-

sometimes it seems like I am just peeing in the wind-pardon the french-because we are up against such an adversarial VA and like John said (he too has a very valid CUE in my opinion) you all have to live long enough to get what is yours-

my weekly week wacking and housework is almost done and I can get to RSG's BVA decision tomorrow-I read it many times so far but putting something down and then going back to it again the next day can sure help see things we didnt see at first-

I called the RC up here today and the sec told me he is preparing a response- I said I don't want a response I want the cash and if I dont like his response I am sending it to the H VAC-

then I realised that in spite of the regs I enclosed with my offset refund request and the BVA decision that said it should be due me with direct SC death award-I expect some song and dance anyhow.

I think the VA will make me fight -in spite of fact I am Nehmer widow now- for each of the 6 separate awards they owe me.I guess I have come to expect that but then again -when the VARO and the BVA denied my past request for another offset refund -it was the RC who found I was right-and here I believed at the BVA level-that the VA couldnt make a mistake-

Yeah right- if RSG had a valid CUE here-and I truly believe he does-

he has to make sure he keeps in good health as possible to make sure he lives long enough like John to reap the rewards- for what appears to should have been awarded to him in the first place.

[RSG]

Berta,

you are a sweetheart for helping me with this....I sometimes don't comprehend very well anymore...

I will get what you requested tomorrow....Tnx

Larry-that sure was nice of you to tell me that-

sometimes it seems like I am just peeing in the wind-pardon the french-because we are up against such an adversarial VA and like John said (he too has a very valid CUE in my opinion) you all have to live long enough to get what is yours-

my weekly week wacking and housework is almost done and I can get to RSG's BVA decision tomorrow-I read it many times so far but putting something down and then going back to it again the next day can sure help see things we didnt see at first-

I called the RC up here today and the sec told me he is preparing a response- I said I don't want a response I want the cash and if I dont like his response I am sending it to the H VAC-

then I realised that in spite of the regs I enclosed with my offset refund request and the BVA decision that said it should be due me with direct SC death award-I expect some song and dance anyhow.

I think the VA will make me fight -in spite of fact I am Nehmer widow now- for each of the 6 separate awards they owe me.I guess I have come to expect that but then again -when the VARO and the BVA denied my past request for another offset refund -it was the RC who found I was right-and here I believed at the BVA level-that the VA couldnt make a mistake-

Yeah right- if RSG had a valid CUE here-and I truly believe he does-

he has to make sure he keeps in good health as possible to make sure he lives long enough like John to reap the rewards- for what appears to should have been awarded to him in the first place.

[Hoppy]

Berta, RSG and others,

I have not read the decision. I might not be able to I barely can sit at the computer because of a neck problem. I feel like I need to jump in on this thread. When you read the decision keep this in mind. RSG discussed this claim with me a year ago. My recollection is that his initial claim after discharge was denied because he was diagnosed with a personality disorder. Although personality disorders are considered developmental and not service connectable the PD diagnosis was applied even when no pre-service symptoms were known to have occurred. PD’s were thought in many cases to first show symptoms during the early twenties.

The fact that they might have decided the presumption of soundness was rebutted caused the RO to fail to develop the claim. The determination that the presumption of soundness was rebutted illegally was appealable. I have read many BVA decisions overturning a RO determination that the presumption of soundness was rebutted. It sounds to me like the original denial was not appealed. Some research as to whether or not a decision that the presumption was rebutted illegally can directly result in a CUE is needed. My fear is that not only do you need to show the legal error there has to be evidence of a diagnosis of a service connectable condition at the time of the original decision. What diagnoses were in the file at the time of the original denial. How will you prove your level of disability in the 60’s. CUE’s are a multistep analysis. RSG, Review the steps. It is on the hadit info page. If I was trying to get fifty years of back pay I would get a lawyer.

About a year ago I told RSG to go to the VA or any other psychologist and have them review the SMR and see if they can apply a current DSM IV diagnosis. Knowing what I do know about the DSM II and the DSM IV I thought he had a good chance of getting a DSM IV diagnosis applied to the symptoms in the SMR. I had previously assisted several veterans getting DSM II diagnoses changed. Layer, RSG sent me a PM explaining that he did this and was successful.

All I have heard about in this case is that a clinician said the symptoms in the SMR are consistent with an episode of Bi-Polar. So far the only mistakes anybody is talking about has to do with diagnoses and the presumption of soundness. I am not confident that wrong diagnoses or a changed diagnosis opens the door for CUE. I have the case law on this on my computer and will post it in the future.

The original diagnosis in the 60’s could easily have been proper at that time. Consider that the DSM II gave clinicians great latitude in making a diagnosis. The criteria for a DSM II diagnosis was so vague and resulted in such a wide variation in diagnoses that the entire diagnostic system used in the DSM II was abandoned and replaced under the DSM III and IV.

[Hoppy]

These are the types of questions you will need to deal with from my experience.

Rule 1403 offers the following examples of situations that

are not clear and unmistakable error: (1) Changed

diagnosis. A new medical diagnosis that "corrects" an

earlier diagnosis considered in a Board decision; (2) Duty

to assist. The Secretary's failure to fulfill the duty to

assist; and (3) Evaluation of evidence. A disagreement as

to how the facts were weighed or evaluated. 38 C.F.R. §

20.1403(d).

How was it that the incorrect determination that the presumption of soundness had been rebutted was not based on weight given to the medical evidence?

© Errors that constitute clear and unmistakable error.

To warrant revision of a Board decision on the grounds

of clear and unmistakable error, there must have been an

error in the Board's adjudication of the appeal which,

had it not been made, would have manifestly changed the

outcome when it was made. If it is not absolutely clear

that a different result would have ensued, the error

complained of cannot be clear and unmistakable.

If the only diagnosis in the file at the time of the original decision was for a non service connectable condition how is it clear that even if the presumption of soundness was properly applied there would have been a different result?

Edited September 5, 2009 by Hoppy

[RSG]

They based everything on a pre-existing condition that did not exist...at least that is the way I read the BVA decision...I could be wrong, but that's the way I read it....

remember I don't comprehend things to well sometimes.....

These are the types of questions you will need to deal with from my experience.

Rule 1403 offers the following examples of situations that

are not clear and unmistakable error: (1) Changed

diagnosis. A new medical diagnosis that "corrects" an

earlier diagnosis considered in a Board decision; (2) Duty

to assist. The Secretary's failure to fulfill the duty to

assist; and (3) Evaluation of evidence. A disagreement as

to how the facts were weighed or evaluated. 38 C.F.R. §

20.1403(d).

How was it that the incorrect determination that the presumption of soundness had been rebutted was not based on weight given to the medical evidence?

© Errors that constitute clear and unmistakable error.

To warrant revision of a Board decision on the grounds

of clear and unmistakable error, there must have been an

error in the Board's adjudication of the appeal which,

had it not been made, would have manifestly changed the

outcome when it was made. If it is not absolutely clear

that a different result would have ensued, the error

complained of cannot be clear and unmistakable.

If the only diagnosis in the file at the time of the original decision was for a non service connectable condition how is it clear that even if the presumption of soundness was properly applied there would have been a different result?

Edited September 5, 2009 by RSG