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?

[john999]

I could have really used a high disability rating when I was young enough to go to college and try and rehabilitate myself. Knowing the VA of the old days as soon as I showed a sign of life they would have reduced me back to poverty level rating like $28 dollars a month for 10% disability. A 100% rating in 1973 was only about $600 dollars, but that would pay rent and a car payment and food probably. The VA never seems to miss an opportunity to kick a vet in the yarbels. Today's G.I. Bill is not enough to pay for tuition, books and living expense. There are no jobs so what does the vet do? You need to work at least part time. The 100% vet is better off moneywise just to never even attempt to rehab himself. That is preverse.

[jerrbilly]

Good point John.....damned if you do; damned if you don't

jerr

The 100% vet is better off moneywise just to never even attempt to rehab himself. That is preverse.

[Commander Bob]

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.

Again, Congratulations on seeing this through John999. You are an inspiration, with your CUE, and claim and your lawyer, and your tenacity. . . I truly appreciate your council and encouragement. You have helped many vets with your involvement here. Thank you.

I have never had a good "going over" of my C-file. Just a few looks over some VA reps shoulder. You remember back in the old days, when ever we got our hands on our files, they were locked up in a green canvas bag. LOL.

My most positive thoughts are with you to prevail.

Edited January 28, 2010 by Commander Bob

[Dorothy Kansas]

Good Luck John! I had a nearing in 2007 with BVA which was a total waste of time. The judge basically stamped the VA.s decision. Whe I finally got a copy oof the records sent to the BVA half of my information was missing and the tape conversation was full of errors it made me out to be a bumbling idiot it really was an insult. I believe they should state all evidence. They started inventing Dr's that susposedly examined me I have no name just that it was another Dr against. They totally dismantled my Rheumatologist and misquoted my neurologist. In the end the Varo awarded the SAH in march 09 and later the bva also granted the same benefit. This case has gone on since 2003 and I received no retro. I'm still waiting but like Berta Said it should be a large check. L1/2+K increased to R2.

[carlie]

John999,

Keep in mind also that if the CUE is granted,

VA retro would be the 100 percent rate, going by

the historical compensation amounts -

minus whatever they paid you during all those months.

It will also be good if the CUE is granted, to then have

your 20 years protection.

carlie

[broncovet]

John

I agree with Berta, based upon your posts, that this is a "slam dunk" win for you. Further, I dont think it hurts your case one iota that the judge did not ask you any questions. You are a victim in this, not the accused. I think it is great the judge did not ask you questions...your evidence speaks louder than anything you could say, anyway. I am guessing the judge, frankly, did not need your testimony. He is looking for "reasons and basis" for decision. If the judge says, "the evidence shows the Veteran applied in 1973" that is far more less likely to be appealed, than, "the Veteran testified he applied in 1973".

The judge is doing you a favor. You dont need to be "tripped up" because you are nervous in front of the judge and say something where you later think, "oops, I didnt mean to say that..." Rather, the judge is saying, "well the evidence is all layed out, and in order, so there is nothing the Veteran can add/detract from it, that is, the evidence is compelling."

As, I think, Shakespeare once said, "Thou doth protest too much". You dont need to convince the judge..your evidence does that for you.