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

[RSG]

Hi Delta,

I went thru DAV all these past years trying to show that i was still having issues with all this depression crap,

actually PTSD, Everytime I tried thay and I mean everyone aggreed with the VA, so I don't trust those people

any further than I can throw them.. You lose faith after all this time....I know I have...They have never, NEVER, helped me......but to give them the benefit of the doubt....who would you suggest, I am open to at least listening....RSG

[deltaj]

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.

The word is pronounced FOPAW but it is spelled faux pas. An engineer friend of mine taught me that years ago.

[deltaj]

deleted

For some reason I don't have an edit feature here to say that the Board's 8/20/08 decision erred for the reasons stated by me here.

[Berta]

Found what I might have said here that I was looking for!!!

http://edocket.access.gpo.gov/cfr_2008/julqtr/38cfr3.303.htm

In essence this is 38 CFR Chapter 1, Part 3 Adjudication ,Section 3.303 and this reg goes back to 1961.

It pays to check out the regs alleging CUE that were published at time of CUE.

Yippee!!!!!!! research always pays off! -one of the CUEs lies in their violation of this reg.

The other two are found within the BVA decision but are Bopise RO CUEs.

Edited September 7, 2009 by Berta

[Berta]

Delta -there is no CUE in the BVA decision. The CUES are in the RO denials prior to Ron's award letter-back to 1969.

Edited September 7, 2009 by Berta

[RSG]

The word is pronounced FOPAW but it is spelled faux pas. An engineer friend of mine taught me that years ago.