Help - Help

[carlie]

OK - the way I've always understood this is :

To establish service connection, the record must contain:

(1) medical evidence of a current disability,

(2) medical evidence, or in certain circumstances, lay testimony, of in-

service incurrence or aggravation of an injury or disease,

and

(3) medical evidence of a nexus between the current

disability and the in-service disease or injury.

In other words, entitlement to service connection for a particular

disability requires evidence of the existence of a current

disability and evidence that the disability resulted from a

disease or injury incurred in or aggravated during service.

BUT...........

A notice of denial I got from VARO dated Nov 15, 1978 states:

Your disability compensation claim has been carefully considered.

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and (b) must be 10 percent or more disabling.

Question:

Does anyone know if this was truly the correct criteria for establishing

service connection in 1978 - that a disability had to be 10 percent or more disabling ?

Still preparing for BVA Hearing this Friday AM.

Thanks,

carlie

Edited September 16, 2009 by carlie

[dannydad]

carly im not sure about 1978 but i have a zero percent sc left knee dated 1982. go for it.....

[carlie]

3.304 and 3.309. The regs were misquoted to you. It does not say 10 percent it says compensable.

The document you have is a blatent in writing lie. These regs have not changed since 1947.

Challenge the living hell out of it at your hearing.

Then when your done, consider a cue for the retro as this is not how evidence is weighed it is a misinterpetation of the regs.

Remember you are in an area of the VA that bears legal precedence. That statement rules the BVA and Courts.

J

j,

Funny you should mention C&UE for error - because I posted this topic in relation my C&UE

claim as it is one of the issues for my BVA Hearing this Friday.

This, in and of itself is not the C&UE but should hold some bearing on it.

carlie

[rentalguy1]

10% and compensable are interchangeable terms. Ten percent is the minimum compensable rating that the VA has. a 0% rating would be called "non-compensable." There was no error in the wording of the 1978 denial letter. While it did not cite the reg verbatim, it is correct for all intents and purposes.

[broncovet]

Carlie

While this may be obvious, you have to prove CUE if you are appealing a 1978 Rating decision where a NOD was not timely filed.

Importantly, you have to not only prove CUE, but that the error substantially affected the outcome. In other words, if they misspelled a word in 1978, that would be an error, but it would be insufficient to "pry open" your case. I will provide an example.

You are appealing the effective date, so you read the decision and find they misspelled "the" to "teh". You use this misspelling to get the VA to "notice the error" but you really dont care about the spelling..you are trying to get the VA to look at your effective date, but you know the effective date, in itself, wont meet the strict CUE standard, because it was a judgement call of the rater.

IMHO in the above example, you would loose. To qualify as CUE the error has to be "material", and misspelling the would not qualify as material evidence. On the other hand, if the decision stated the EED was July 1, 2008, which was a typo that meant July 1, 1998, that would be a "material" CUE, as this error would mean you were entitled to 10 more years of retro.

Edited September 16, 2009 by broncovet

[jbasser]

The issue is not the misquote. The issue is this.

Your disability compensation claim has been carefully considered.

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and (;) must be 10 percent or more disabling.

This is wrong. It must be 10 percent disabling within the presumptive period.

It does not have to be 10 percent if it is direct service or inthe4 line of duty.

J

[Berta]

I also interpret the 10% statement as meaning the disability had to be at compensable level for payment.

In a CUE claim even if a vet gets 100% for the disability now and say they file a CUE on the fact they got a "0" SC % for the same thing - decades ago-

They would have to show the Zero was wrong by virtue of medical evidence in the VA's possession at time of the alledged CUE.

It is possible that a vet would have something listed on their SMRs yet rated at "0" SC by the VA-and if the disability became progessive- then down the road they could claim higher rating for the 0% SC condition.

Even if the VA made errors in a older claim the "manifested" and "altered" outcome means their error cost you retro at the time they made the error.

If medical evidence ion the C file warranted a rating higher than 10% the legal error was in the improper application of the rating schedule existing at time of CUE.

Also the diagnostis code they listed in the older decision-if that is incorrrect due to this medical evidence-that could hold basis for CUE too.

For most CUE claims if not all- the medical evidence has to be established and in VA's possession (see Bell V Derwinksi for BVA CUEs)

I call it the Watergate scenario- what did they know and when did they know it.

For example-

The VA knew my husband had heart disease.

But they found this out when the VA OGC rendered a FTCA award for negligence.

The VA VACO Medical Team report was dated a few months before they made two separate posthumous awards to me-one of which contained the rating sheet.

My rep at the time questioned why they did not award SMC.Rod was 100% SC for PTSD too.

The established medical evidence at time of the decisions I Cued clearly showed that the med evidence was in VA's possession (whether the RO had it by then from VACO or not)

the medical evidence warranted a SMC consideration.

The legal evidence I used was within M21-1-I sent them the page of M21-1 guidelines that stated in all cases where the medical evidence warrants SMC consideration, the RO will make a SMC determination.

I also stated that the regulations on SMC do not specifically disallow this specific veteran and are applicable to all veterans with 100% SC for one disability and at 60% or greater for additional SC disability.

I didnt have a DC to argue-they never gave him a Diagnostic code.

My long point is that CUEs rest on what is established that is already in the clinical record.

If the VA gave you "0" SC for a disability that should have warranted a higher rating-in 1978-the higher rating should be evidenced in the medical records at time of the decision being cued.

Myler is a good example.I posted Myler links here before-

GSW clear through and through-

I think he had scar rating prior to filing a CUE.

But the medical evidence without a doubt (and with common sense) showed his gun shot wound was more then entrance- exit scars but had damaged his muscles at area of the GSW.