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]

John -I forget but curious- did Karl have to raise Bell V Derwinski n your case?

"In Bell v Derwinski, 2 Vet. App. 611 (1992), which was decided on July 21, 1992, the Court of Veterans Appeals created the constructive notice rule. That is, that medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision. Accordingly, as to final decisions made on or after July 21, 1992, evidence which was in VA's possession at the time the AOJ decision was made will be deemed to have been in the record before the AOJ at the time of that decision. The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error."

[carlie]

Berta,

Bell would not reach back to a 1973 Rating Decision,

would it?

carlie

[Berta]

I dont recall ever saying anything is a "slam dunk" with the VA-John has a VERY valid case here and a strong basis for CUE.

I have said many awards are no brainers- but we deal with the VA- a bunch of no brains.

I used Bell in my CUE claim.

The VA said Wednesday that they have established all of my entitlements - yeah right-

The entitlements should render my long standing SMC CUE claim moot. That is unfortunate because I wanted to get a decision on it.

It would have helped Cue-er- inos here-

But maybe they buggered that entitlement and I can still pursue it-

the VA has manipulated and confounded every single aspect of my very simple CUE claims-and has totally disregarded all of my legal evidence.The good part is that since 2004 they continue to send me SSOCs and I have stated to them that their errors on these CUE claims are so egregious that they cannot send the claims (2 in 1) to the BVA.

But if they fully did the entitlements correctly ,they have to award the SMC accrued anyhow-so the CUEs I filed are moot.

[Commander Bob]

Again, Congratulations on seeing this through John999. You are an inspiration to all weary disabled vets with a valid claim.

[Berta]

I think it could affect a subsequent decision later July 21 1992, that references a prior denial.

But I am not sure Carlie-

I don't know if Bell was appropriate to John's case or even to mine but I whipped it out and sent it to them anyhow for my CUE claims.

I was concerned that the OGC had evidence of malpractice that they had confirmed-in July 1997 yet that evidence might not have reached the VARO in late 1997 or 1998 when they said my husband (over 300% -100 % direct SC and 200 %1151 SC) was "not eligible for SMC consideration under any circumstance."

That is the statement I CUED.

Even my POA questioned that but didnt advise me to NOD it- and I sure didnt know then what I know now- I should have nodded it.

But my new award reflects that ALL of those disabilities are now AO direct SC-thus they must consider SMC as accrued under the Nehmer COurt Order.

Which would make my CUE claims moot. The resolve and the retro would be the same.

Edited January 29, 2010 by Berta

[john999]

In no way do I think my CUE is a slam/dunk. Since we maintain that my CUE happened in 1973 I don't know if Bell would apply since it involves evidence in the file after 1992. My evidence was clearly in the record since it was stamped "received and dated" in 1972 which was almost a year before the actual decision. If you look at the decision it is obvious that my doctor's report is no part of that decision. In the record does not mean before the adjudicator unless there is that assumption before 1992. I don't know how the VA can just cherry pick which evidence they are going to consider and which they disregard or ignore? If they were allowed to do this there would never be a point of getting an IMO because they could just choose to ignore it without ever listing or noting it in the decision. My lawyer also says that if the VA did somehow use my doctor's evidence in the decision then they misapplied the regulations for rating a disability.