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Cue Claim ?


Charleese

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Hi all,

I asked this question in the CUE section of this forum and thought I ask here because there seems to be more people in this section than CUE section that will answer.

Do you think this is a CUE and if so tell me why.

On Sept. 9, 1983 vet filed an application for Compensation. On Sept. 15, 1083 it was written on Application "3101 SENT SMR'S - DID NOT PRINT - RIBBON WAS OFF". It was written by someone with the initial of CB. On 2-21-1984 Rating Decision states "Service medical records concerning this veteran are not available." A report form Dr. XX indicates he treated the veteran in 1978 for a right knee condition diagnosed as degeneration of knee, right. X-rays showed two screws in the upper tibia just below the joint surface probably due to a plateau type fracture. It goes on to state: "The evidence of record is insufficient to establish incurrence or aggravation of a right knee disability in military service. 8. NSC (KC, PTE) Degeneration of Knee, Right.

Vet NODed this decision on 5-1-84 and attached a Statement In Support Of Claim to his NOD 21-4138. On that form VA wrote on 4-19-85: "Not recog. as NOD at this time as vet furn. SMR;s not furn. to us by NPRC. They reopen his claim in place of his NOD. 3 signatures were signed off on 1984 and 1985 decisions.

Because VA had this vet's SMR's but failed to put a ribbon in printer to print them out it caused them to rate him as NSC qne the fact that they wouldn't accept his SMR's from him and not accept his NOD that he got from NPRC which he ended up getting a 0% rating in 1985 wouldn't these be clear and unmistakable errors?

Your replies to this topic is greatly appreciated.

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  • HadIt.com Elder

Yes, if the VA admits that the reason they did not get or use the SMR's is because they ran out of type writter ribbon that is a gross error. The VA did not fully develope the claim. The VA says that since they got the records from the vet instead of NPRC that those records were considered tainted. I think I would go out and get me a laweyr for this. Did the Vet ever appeal the 0% rating? A CUE must be based on final and unappealed rating. CUE is a legal argument, so I like to get a legal eagle to argue it.

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what SC percent for these disabilities does he have now?

A CUE claim must be an error that manifestedly altered the outcome.

I assume in the decades since this last decision-the vet or the VA has obtained his complete SMRs and by now he has gotten a SC award based on a re -opened claim.

With an established SC rating now - after 25 years-for the same disability- then yes I would say they made a CUE that manifestly altered the outcome in the past unappealed decision

It would pay to read Bell V Derwinski as that case cold offer some help- if this claim was ever at the BVA.

If he still has not obtained a SC rating, then I would wonder how he has a chance for a CUE claim.

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Yes, if the VA admits that the reason they did not get or use the SMR's is because they ran out of type writter ribbon that is a gross error. The VA did not fully develope the claim. The VA says that since they got the records from the vet instead of NPRC that those records were considered tainted. I think I would go out and get me a laweyr for this. Did the Vet ever appeal the 0% rating? A CUE must be based on final and unappealed rating. CUE is a legal argument, so I like to get a legal eagle to argue it.

Yes the VA admitted that the reason they did not get or use the SMR's is because they ran out of ribbon when they wrote: "3101 Sent SMR's - Did Not Print - Ribbon was off." No the Vet never appealed the 1985 0% rating which became final in 1986? That 0% rating didn't change until August of 2000 which he was granted a 10% rating after a VA orthopedic eam of 8-22-2000. He did a NOD on that decision in April of 2001. In an SOC issued on October 3, 2002 they stated: "We reviewed your apeal and determined that an error had been committed in our prior decision in failing to assign a separate 10% disability rating for the tender scar on your right knee. You will be notified more about this shortly. On October 11, 2002 VA issued CUE on themselves it states: "We reviewed your appeal and determined that a clear and unmistakable error was committed in not granting you separate 10 percent disability rating for the tender scar noted on the VA examination of 8/20/2000 medial to your patella and extending below the patella. The 10 percent rating is granted effective June 22, 2000, the date of receipt of your claim for increase. In Dec. of 2003 the BVA sent a Remand back to RO telling RO that there was 5 items they had to do. On Oct. 15, 2004 VA Appeals Management Center issued a decision on his appeal. They gave him a rating of 30% for recurrent subluxation, right knee, and 30% for status post gracture right tibial tubercle with osteoarthritic changes and chronic chondromalacia. This rating came about because of VA exam dated April 27, 2004, which gave him a total rating of 60%.

I agree he should get a lawyer. Do you know if they will charge him up front or not?

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what SC percent for these disabilities does he have now?

A CUE claim must be an error that manifestedly altered the outcome.

I assume in the decades since this last decision-the vet or the VA has obtained his complete SMRs and by now he has gotten a SC award based on a re -opened claim.

With an established SC rating now - after 25 years-for the same disability- then yes I would say they made a CUE that manifestly altered the outcome in the past unappealed decision

It would pay to read Bell V Derwinski as that case cold offer some help- if this claim was ever at the BVA.

If he still has not obtained a SC rating, then I would wonder how he has a chance for a CUE claim.

No they haven't because NPRC claims they burned up in the 1973 fire. Also his 1985 rating decision states: "The veteran has furnished evidence verifying that he received a fracture to the right tibial tubercle without artery or nerve involvement on 12/27/54. The fracture was fixed with 2 bone screws and the veteran was discharged to light duty for 6 weeks. On current examination he has osteoarthritis present at the patellofemoral joint with scarring noted on the lateral view of the kneecap and its superior and inferior poles. The examiner indicated that this was no doubt secondary to prior injury. He had full extension and flexion of the knee. He does, however, complain of discomfort in and about the knee. A final diagnosis of chronic chondromalacia patella with osteoarthritic changes secondary to the trauma was given. Although the veteran experiences pain in his knee joint, he has no functional limitations in the joint and a noncompensable evaluation will be assigned. 1. SC (KC INC) Status Post Fracture, Right Tibial Tubercle with Osteoarthritic changes and Chronic Chondromalacia 0% from 9/9/83. 5299-5262. 3 signatures are on this rating decision.

Now mind you when he submitted his Application in 1983 he submitted a 1978 Private Doctor Records and X-rays. In the 1984 rating decision they cite this 1978 Doctor's report by stating: A report from Dr. XX indicates he treated the eveteran in 1978 for a right knee condition diagnosed as degeneration of knee, right. X-rays showed two screws in the upper tibia just below the joint surface probably due to a plateau type fracture. They also state Service medical records concerning this veteran are not available. The evidence of record is insufficient to establish incurrence or aggravation of a left knee disability in military. However Doctor's 1978 report states also that: "Patient is complaining of his right knee. He has a history of a 1954 injury while in the army to his knee which required surgical intervention and placement of 2 screws."

They had this info when he filed in 1983. It did manifested the outcome because he was given a NSC rating. Then in 1985 he was given a 0% rating. This 0% rating lasted until 2000 when it went to 10%. Yes this is the same disability and the only service connected disability that he has. I will read Bell vs. Derwinski.

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  • HadIt.com Elder

The lawyers take 20% of any retro he might get, so there is no upfront fee.

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  • Moderator

IMHO the best route for the Veteran to proceed is NOT CUE. Cue requires a much more strict standard, and, since a timely NOD was filed, is not necessary. What is necessary is to get the VA off their duff and process the appeal. This would be best accomplished by:

1. File a "new" claim, while keeping in mind you will be appealing the effective date if/when you win, so dont "burn down that bridge". I think Berta is right that you will be using the case of Bell v Derwinski's "constructive notice" rule, but I recommend you go ahead and try to get service connection, then appeal the effective date to get your retro. Its a pain in the neck, but, it should mean 2 hefty "retro checks" down the road, instead of just one. The Veteran can have something to look forward to.

If the VA does not respond to the "new" claim, then you probably need to file a "notice of Intent to file a Writ" followed by a Writ of Mandamus in 60 days.

The VA LOVES to overcomplicate everything.

Also keep in mind the VA is very large, and it is likely there are mostly all "new people" you will be dealing with other than those in 1984. So minimize mentioning about the 1984 claim..just enough so that you can win the effective date later.

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IMHO the best route for the Veteran to proceed is NOT CUE. Cue requires a much more strict standard, and, since a timely NOD was filed, is not necessary. What is necessary is to get the VA off their duff and process the appeal. This would be best accomplished by:

1. File a "new" claim, while keeping in mind you will be appealing the effective date if/when you win, so dont "burn down that bridge". I think Berta is right that you will be using the case of Bell v Derwinski's "constructive notice" rule, but I recommend you go ahead and try to get service connection, then appeal the effective date to get your retro. Its a pain in the neck, but, it should mean 2 hefty "retro checks" down the road, instead of just one. The Veteran can have something to look forward to.

If the VA does not respond to the "new" claim, then you probably need to file a "notice of Intent to file a Writ" followed by a Writ of Mandamus in 60 days.

Do not understand what you mean when you say it should mean 2 hefty "retro checks" down the road? How would he open his case?

The VA LOVES to overcomplicate everything.

Also keep in mind the VA is very large, and it is likely there are mostly all "new people" you will be dealing with other than those in 1984. So minimize mentioning about the 1984 claim..just enough so that you can win the effective date later.

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  • HadIt.com Elder

broncovet - I fail to see how a new claim will work. I strongly feel he can get it corrected with a CUE claim. In 1985 the awarded him SC at 0%. So now he needs to CUE it for an earlier effective date, thereby correcting the NSC error. He could always claim "grave error" and use Bell v Derwinski (tho I haven't read it lately). CUE isn't that hard to win. jmo

pr

IMHO the best route for the Veteran to proceed is NOT CUE. Cue requires a much more strict standard, and, since a timely NOD was filed, is not necessary. What is necessary is to get the VA off their duff and process the appeal. This would be best accomplished by:

1. File a "new" claim, while keeping in mind you will be appealing the effective date if/when you win, so dont "burn down that bridge". I think Berta is right that you will be using the case of Bell v Derwinski's "constructive notice" rule, but I recommend you go ahead and try to get service connection, then appeal the effective date to get your retro. Its a pain in the neck, but, it should mean 2 hefty "retro checks" down the road, instead of just one. The Veteran can have something to look forward to.

If the VA does not respond to the "new" claim, then you probably need to file a "notice of Intent to file a Writ" followed by a Writ of Mandamus in 60 days.

The VA LOVES to overcomplicate everything.

Also keep in mind the VA is very large, and it is likely there are mostly all "new people" you will be dealing with other than those in 1984. So minimize mentioning about the 1984 claim..just enough so that you can win the effective date later.

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PR

While CUE is still a possiblity I dont see any sense in making this more challenging than necessary. The "bar" is higher for CUE than it is for regular claims, so why move the "bar up" with Cue? I would much rather have to meet the lower standards which include the benefit of the doubt. With CUE standards, the benefit of the doubt goes out the window. This Veteran, of course, could win a CUE claim, but I dont see any reason to claim CUE when he has filed a timely NOD, and meeting the strict CUE standard is not necesary for this Veteran to win. Why make it harder, isnt it already hard enough to win Veterans benefits?

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  • HadIt.com Elder

broncovet - okay, we can agree to disagree. He filed a timely NOD which was acted upon. I see no other way to get it changed. Hey . . . whatever! I feel to win it, it calls for a CUE. CUEs aren't that hard to win. You just need to prove the error. jmo

pr

PR

While CUE is still a possiblity I dont see any sense in making this more challenging than necessary. The "bar" is higher for CUE than it is for regular claims, so why move the "bar up" with Cue? I would much rather have to meet the lower standards which include the benefit of the doubt. With CUE standards, the benefit of the doubt goes out the window. This Veteran, of course, could win a CUE claim, but I dont see any reason to claim CUE when he has filed a timely NOD, and meeting the strict CUE standard is not necesary for this Veteran to win. Why make it harder, isnt it already hard enough to win Veterans benefits?

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Hi all,

I know Berta said to read Bell v. Derwinski and I did. After reading Bell v. Derwinski I want to know whether it is right to cite in this vet's claim or not. This claim goes back to 1983 or earlier. He originally filed in 1958 but they lost his claim, and then he filed again in 1983. The reason why I ask this question because of the following:

However, the General Counsel pointed out that the rule announced in Bell may not be applied retroactively to establish clear and unmistakable error in decisions which were final prior to the Bell decision. In reaching this conclusion, the General Counsel cited Damrel v. Brown, 6 Vet. App. 242 (1992), which dealt with an allegation of clear and unmistakable error in a case dealing with constructive notice of insurance records. In Damrel, the Court found that the constructive notice rule first announced in Bell was not applicable to decisions which became final prior to July 21, 1992, the date of issuance of the Bell opinion.

His claim being prior to 1992 would the above apply to his claim?

Thanks for your replies.

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  • HadIt.com Elder
Hi all,

I asked this question in the CUE section of this forum and thought I ask here because there seems to be more people in this section than CUE section that will answer.

Do you think this is a CUE and if so tell me why.

On Sept. 9, 1983 vet filed an application for Compensation. On Sept. 15, 1083 it was written on Application "3101 SENT SMR'S - DID NOT PRINT - RIBBON WAS OFF". It was written by someone with the initial of CB. On 2-21-1984 Rating Decision states "Service medical records concerning this veteran are not available." A report form Dr. XX indicates he treated the veteran in 1978 for a right knee condition diagnosed as degeneration of knee, right. X-rays showed two screws in the upper tibia just below the joint surface probably due to a plateau type fracture. It goes on to state: "The evidence of record is insufficient to establish incurrence or aggravation of a right knee disability in military service. 8. NSC (KC, PTE) Degeneration of Knee, Right.

Vet NODed this decision on 5-1-84 and attached a Statement In Support Of Claim to his NOD 21-4138. On that form VA wrote on 4-19-85: "Not recog. as NOD at this time as vet furn. SMR;s not furn. to us by NPRC. They reopen his claim in place of his NOD. 3 signatures were signed off on 1984 and 1985 decisions.

Because VA had this vet's SMR's but failed to put a ribbon in printer to print them out it caused them to rate him as NSC qne the fact that they wouldn't accept his SMR's from him and not accept his NOD that he got from NPRC which he ended up getting a 0% rating in 1985 wouldn't these be clear and unmistakable errors?

Your replies to this topic is greatly appreciated.

First I want you to read Garrett Hayre v. Togo West. While reading that decision I want you to notice that the court stated that the 1972 decision was not final for purposes of direct appeal. Next I want you to read 38 USC 5108. Now I think what this veteran needs to do is get copies of the service medical records from the National Personnel Records Center and request that V.A. reopen his claim received by V.A. on September 9, 1983 under the provisions of 38 USC 5108 using those newly acquired service records. Anyone else agreed with me on this? Also be aware that while this veteran is requesting copies of his service medical records that a separate request for inpatient hospital records must be made to the National Personnel Records center. If inpatient hospital records are involved check on the internet how to request those records from the National Personnel Records Center.

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  • HadIt.com Elder

I read all of the above responses and learned that V.A. was claiming the records burned in the fire at the National Personnel Records Center. V.A. sometimes does that even though the records are still at the National Personnel Records Center so make 2 requests to the National Personnel Records Center: one for Service Medical Records and one for inpatient hospital records. The veteran should also request a copy of his claims folder from V.A. I make this point because V.A. may have received some additional service records prior to the 1985 decision which granted a 0% service connected rating.

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