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

[Berta]

Hoppy in my opinion after reading the BVA decision- the BVA practically defined the CUE in the earlier VARO decisions.

RSG said

"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 "etc

I agree with RSG 150 %.It is a beauty.

The BVA decision is part of the evidence for the CUE.

They did not apply the 38 USC 1111 and 38 USC 1153 - i erred in typing 1151-

it is prime facie in the BVA decision.

"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?"

The 1969 decision should have awarded service connection in my opinion for many many reasons.Those reasons are in the BVA decision and can be expanded on.I am prepared a CUE claim for RSG and am also raising the point of Chronic presumptive if I can-

I need to read many CAVC decisions to see how to shape that part.

I sure miss Terry Higgins and still wonder why he isnt here anymore-

He was hospitalized in the Military for schizophrenia.

As a Psychoses this was under the chronic presumptive regs. He sure had a valid CUE claim.Many years later he was awarded for schziphrenia-but he had it when he left the mil and filed his first claim.

Although this is not the case for RSG-RSG definitely had a disability manifested in service and has the same disability today as SC.

Although his disability is not a psychosis and on the established chronic presumptive list in 38 CFR - anyone -if they can prove chronic -under the Chronic Presumptive regs can be service connected.

It has been done.

RSGs case here contains the meat and potatoes of CUE -

I have no idea how to predict the outcome of this CUE claim-but this is worth fighting for-

my CUEs have been at the RO since 2004 and I have knocked down their denials twice already-

they have yet to even consider any of the Legal evidence I sent to them.

My recent award made these claims moot but I will still fight them as soon as I get another response from VARO.

CUEs cost the VA cash.They will attempt to confound the issues-sometimes.

In this case I totally agree with RSG's take on the wording of the BVA decision.

It supports that CUE occurred with no rationale and no legal basis.

If RSG succeeds on this -his EED will be the day after his discharge.

I dont know what rating they would give him but the EED date to the best of my knowledge will be that date.

Any comments on page 5 of the BVA decision?

Edited September 5, 2009 by Berta

[Hoppy]

Berta,

Terry does show up every now and then. I agree that RSG's cases does sound like a major FOPAW. The details are what will be important. I did read the decision this morning.

When I first started reading BVA cases in 1997 I found many cases where veterans had told military doctor they had symptoms or treatment prior to service. Routinely, the RO’s determined that the presumption of soundness was rebutted based on the veterans statements. More recently I have found that this has changed and that they now do not give much weight to the veteran’s statements.

Sharon posted some laws on presumption and there was an old law were by the veterans testimony that he had a psych condition prior to service was sufficient to rebut the presumption of soundness. I thought I saved this but I cannot find it. It was posted about two months ago. When I find it I will make a link.

Also when a veteran tells a military clinician that something pre-dated service and then later makes a statement that the original statement was in error, they give weight to the later statement. This is why they noted in the evidence added to the file that there was a lay statement.

This statement from the medical board holds the key.

In a March 1969 Medical Board memorandum to the Physical

Evaluation Board's Senior Member, it was recommended that the

veteran was unfit for duty due to his condition/primary

diagnosis of depressive reaction, agitated type.

Significantly, the report specifically indicated that the

origin [of the diagnosis] was not due to the veteran's own

misconduct, was incurred in the line of duty, and although it

was noted that the diagnosis existed prior to entry, it was

considered aggravated by service.

You really need to find someone who knows what the diagnoses were in the 60’s. I do not have a DSM II. I drive 90 miles up to where I went to school when I need to dig something out of the DSM II. They have one in the bio-med library. However, they won’t check it out. Next time I am up there I will copy the entire book.

My recollection is that when they used the term “reaction” it was in association with personality disorders. If the primary diagnosis is for a condition that was considered a personality disorder it really does not matter if the examiner thought the personality disorder was aggravated by service to the raters. Also there is the possibility that the term “reaction” was used when they had not yet determined that the condition was chronic. As such they would not SC an episode even if the examiner thought the condition was aggravated by service.

There have been several people on the board who had other DSM II diagnoses with the word “reaction”. In their cases I specifically found DOD instructions to the military to consider the condition as “immaturity or personality disorder” and as such were not service connectable. I am sure I lost these DOD instructions 2 hard drives ago.

I think it all hinges around the primary diagnosis and how it was viewed in 1968. I am still of the opinion that even though they found that the presumption was not properly rebutted under current law, there still needs to be a ratable diagnosis in the file at the time of the original denial to award CUE.

[Hoppy]

Berta,

I have found that "depressive reaction" has been service connectable since the fifties. However, it was not always considered chronic. They considered the condition capable of going into remission and when it did they reduced the rating to "0" percent.

It now becomes a question if the unappealed presumption issue is directly equated to CUE and if there is evidence that the condition was considered sufficiently chronic at a level that it would have been rateable. The SMR's will tell the story. I would focus on the SMR's as well as the errors noted in the decision.

If you could figure out that the medical board memorandum somehow got lost during the original denial that would be a very big problem for the VA. How they determined that a condition that was aggrivated by military service was not ratable could be the CUE.

Edited September 5, 2009 by Hoppy

[Berta]

Hoppy - I have read the BVA decision about 12 times so far-

it is a detailed decision.I don't need RSGs SMRs.

Pre existing or aggravation of pre existing is not the issue here. The BVA rendered those VARO inferences as moot with no factual basis at all-actually the BVA knocked down completely the RO ideas of pre existing etc- and on page 7 the BVA notes that the 2005 VA examiner's addendum "Never considered whether the veteran's depressive reaction/bipolar disorder began during service."

The examiner was hung up on the pre existing notion- with no basis in fact.

So right there is another CUE----the RO denied- based on a faulty C & P exam.I am not sure how to get that specific error into CUE format but will come up with something.

I might be able to say this C & P did not comply with the C & P regs-and it appears the original 1969 denial was not even based on any C & P at all-

The BVA said it all:

"The veteran's service medical records clearly establish in-service treatment for depression and there is essentially no evidence to even suggest that such depressive disorder pre-existed service."

and further on page 8:

"Thus, there is no clear and unmistakable evidence to rebut the presumption of soundness at entry."

This is a CUE prime facie against the VARO- I have to re work what I have prepared so far-

and read over some more CUE decisions at the CAVC ---and read the BVA decision a few more times too.

Edited September 6, 2009 by Berta

[deltaj]

I used to be able to pull it up with the docket number...But I don't know now... found it.....http://www.va.gov/vetapp08/files4/0828310.txt

After reading a post from Berta I have concluded that there may be a clear and unmistakable error in the 1969 RO denial which was made contrary to the provisions of 38 CFR 3.1 (m). The Board confirmed the finality of the June 1969 RO decision which denied service connection of depressive disorder despite the fact that the March 1969 medical board memorandum made a service department finding that this veteran's depressive reaction was incurred in the line of duty and the Board should have mentioned 38 CFR 3.1 (m) in its decision. That service department finding of line of duty was binding on V.A. and BVA under 38 CFR 3.1 (m). The board improperly framed the issue as whether new and material evidence had been received to reopen this veteran's later claim for reopening of his claim for service connection. I think that considering the IMOs which were received by the VARO in support of the veteran's claim for service connection since there was a line of duty determination that this veteran's disability was incurred in the line of duty already of record, then the Board should have considered whether new and material evidence was received under 38 USC 5108 and 38 CFR 3.156 which was sufficient to reopen the earlier denial in 1969. Please get some help from a service organization wording your CUE claim.

Edited December 13, 2009 by deltaj

[RSG]

deleted

I think the CUE that exists in this decision is that the Board disregarded the provisions of 38 CFR 3.1 (m) in confirming the finality of the June 1969 RO decision which denied service connection of depressive disorder, despite the fact that the March 1969 medical board memorandum made a service department finding that this veteran's depressive reaction was incurred in the line of duty. That service department finding of line of duty was binding on V.A. and BVA under 38 CFR 3.1 (m). The board improperly framed the issue as whether new and material evidence had been received to reopen this veteran's later claim for reopening of his claim for service connection. Please get some help from a service organization wording your CUE claim.

Edited September 7, 2009 by RSG