Cue At Bva Board

[john999]

I have my CUE with the BVA Traveling Board member next Wednesday at the VARO in St. Petersburg. I have a lawyer who is doing a brief. Who knows if this thing will actually fly. The lawyer seems confident and stands to get a nice check. I am less confident knowing how slick the VA is in avoiding payment for past wrongs. I have to be at the VARO at 8:30 in the morning. Thank God, I can just shut up and let the lawyer do the talking. I have to get up early to drive from Tampa. The VA has tried to frame it as a case of attempting to weight the evidence both pro and con which rules out a CUE. My case is that the VARO did not weigh the evidence. They did not have the evidence before them even though the evidence was in the file. They have also attempted to claim that my service connected disability was not the reason I could not work. The reason, according to the VA, is a personality disorder(emotionally unstable personality) which incapacitated me and made me unable to work or to even relate to other people at the time of my original rating. My SMR's say depression and anxiety and the VA says schizophrenia in it original decision. For this I got a 10% rating. The report from my doctor which never saw the light of day at the VARO says unable to work or function at all in society due to chronic schizophrenia. What would reasonable minds make of this if they had seen all the facts of the case?

[Berta]

Yes John- your claim took a long time to get to this point-

you have been an excellent help here to so many vets and widows -every single day-and you sure understand the legal beagle crapola of CUE claims and I have always felt you had strong basis here for CUE.

I am sure your lawyer has done a great job-and when I spoke with him on a CUE matter I had years ago-he certainly seemed fully versed in CUE.

I think what happened to you with your initial claim- has happened to MANY vets and CUE is the only way to rectify these erroneous denials they got.

[carlie]

I wonder how John is doing right now.

In my mind I can see him sitting there is the reception

room just waiting to be called in for his BVA Hearing.

I hope he get Judge Stephen K Wilkens.

Let us know how it went John.

carlie

[john999]

I had my CUE with a BVA member today. My lawyer and I had to wait an hour and a half past the 8:30 am appointment time. The first thing I noticed when we went into the hearing was the fact that the board member had my C-File which was three times as large as the one the VARO supplied me and my lawyer with before the hearing. How do we get a fair hearing if we don't have the same evidence as the BVA has in their possession?

My lawyer presented his brief and asked me a few questions on the record. The board member did not ask me one question. The hearing took about 20 minutes. My lawyer's contention was that if the VA had considered my doctor's report in 1973 I would be entitled to 100%, so that was an error. If they did not consider it that would also be an error because the evidence from my doctor was clearly crucial evidence that would have resulted in a 100% rating if it was considered. We also brought up the fact that I did not get appeal rights or any sort of C&P exam in 1973. There was nothing in my file that would indicate I ever was given appeal rights after my original decision. However, since we don't have the same evidence as the VA has who knows after 40 years? My C-File was a complete mess and the judge could not find anything. My rating was two pages long with no reasons or basis for the rating I got which was 10% when my doctor had clearly indicated I could not work, and was incapcitated at the time of his exam. My doctor's report was the only evidence in the file that considered any of the rating criteria for a mental disorder. The VA had nothign but some army medical records and a hospital report that just discussed in general terms my condition.

The main issue was not that the evidence was not weighed correctly, but that crucial evidence was excluded that if it had been weighed would have resulted in a 100% schedular rating. The board member was ready to tell us that we did not understand CUE, but after reading the brief he said we did understand it.

My lawyer said if we don't win this CUE he won't do them anymore because if he can't win a case like mine he does not believe he can win any CUE claim. I know there are some here who have won CUE's on their own, but if you are going to the BVA with a CUE my advise is to get a lawyer. My lawyer does SSD claims. He says the VA is a complete mess compared to SSD.

If I win the CUE it will be because I got lucky. That is my opinion. Never in my life would I pin desparate hopes on a CUE. All they have to do is slam the door in your face no matter how obvious the injustice. It is obvious to me and my lawyer that I got screwed, but will it be obvious to the BVA? Will they simply say to themselevs "No way in hell are we going to pay this old vet 100% retro back to 1971". What gripes me the most is the fact the VA did not supply us with a complete copy of my C-File. In any legal case both sides are supposed to have access to the same evidence. Although the CUE only is a tiny part of the file I don't know if I got all the evidence the VA had in their possession when they made the rating. This is unfair at the most basic level. We have no way of knowing if the VA will "find" some evidence that will blow my claim out of the water. I am lucky the whole thing did not go into the shredder. I do not think there is any organization as &*&&^%$ up as the VA.

[john999]

Carlie

My lawyer is optimistic about how the hearing turned out, but the judge gave nothing away. It only lasted a few minutes on the record. Now I have to wait and hope my file does not go into the shredder. The lawyer did a brief that explained our whole case, so it was just the three of us sitting there for a few minutes while I answered a few questions. What is creepy is that the judge asked no questions. Is that good or bad I don't know? Now I feel tired and worn out from waiting around at the VA. You wait a year for a hearing and it lasts 20 minutes. If we win hooray. If we lose Boo Hoo. It was worth a shot.

John

[jerrbilly]

I will keep my fingers crossed for you. There are also VA lawyers out there that specialize in VA. Sounds like your lawyer mainly just deals with SSD which is ok but a CUE follows a very strict legal standard that can catch the average joe lawyer by surprise. I have a CUE pending too and it's just me and my DAV rep on this. I have trust in my rep since he is a past rater.

jerr

I had my CUE with a BVA member today. My lawyer and I had to wait an hour and a half past the 8:30 am appointment time. The first thing I noticed when we went into the hearing was the fact that the board member had my C-File which was three times as large as the one the VARO supplied me and my lawyer with before the hearing. How do we get a fair hearing if we don't have the same evidence as the BVA has in their possession?

My lawyer presented his brief and asked me a few questions on the record. The board member did not ask me one question. The hearing took about 20 minutes. My lawyer's contention was that if the VA had considered my doctor's report in 1973 I would be entitled to 100%, so that was an error. If they did not consider it that would also be an error because the evidence from my doctor was clearly crucial evidence that would have resulted in a 100% rating if it was considered. We also brought up the fact that I did not get appeal rights or any sort of C&P exam in 1973. There was nothing in my file that would indicate I ever was given appeal rights after my original decision. However, since we don't have the same evidence as the VA has who knows after 40 years? My C-File was a complete mess and the judge could not find anything. My rating was two pages long with no reasons or basis for the rating I got which was 10% when my doctor had clearly indicated I could not work, and was incapcitated at the time of his exam. My doctor's report was the only evidence in the file that considered any of the rating criteria for a mental disorder. The VA had nothign but some army medical records and a hospital report that just discussed in general terms my condition.

The main issue was not that the evidence was not weighed correctly, but that crucial evidence was excluded that if it had been weighed would have resulted in a 100% schedular rating. The board member was ready to tell us that we did not understand CUE, but after reading the brief he said we did understand it.

My lawyer said if we don't win this CUE he won't do them anymore because if he can't win a case like mine he does not believe he can win any CUE claim. I know there are some here who have won CUE's on their own, but if you are going to the BVA with a CUE my advise is to get a lawyer. My lawyer does SSD claims. He says the VA is a complete mess compared to SSD.

If I win the CUE it will be because I got lucky. That is my opinion. Never in my life would I pin desparate hopes on a CUE. All they have to do is slam the door in your face no matter how obvious the injustice. It is obvious to me and my lawyer that I got screwed, but will it be obvious to the BVA? Will they simply say to themselevs "No way in hell are we going to pay this old vet 100% retro back to 1971". What gripes me the most is the fact the VA did not supply us with a complete copy of my C-File. In any legal case both sides are supposed to have access to the same evidence. Although the CUE only is a tiny part of the file I don't know if I got all the evidence the VA had in their possession when they made the rating. This is unfair at the most basic level. We have no way of knowing if the VA will "find" some evidence that will blow my claim out of the water. I am lucky the whole thing did not go into the shredder. I do not think there is any organization as &*&&^%$ up as the VA.

[john999]

Jerr

If I was going for a CUE claim with a DAV VSO I would just blow my brains out. My lawyer does understand CUE. Please don't go in there with a DAV rep. Get a lawyer. If there is serious money involved hire an attorney that does VA law. Is your DAV rep going to write a brief? That is what is needed. Don't wing it.

John