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BasehorVet

Is This Cue? Denied Comp For In Line Of Duty Injury That Resulted In 35-4 Medical Discharge For Permenant Disability W 10% Rating

Question

I thought I would pose this question to the CUE experts and see what their thoughts and advice would be. Bottom line is that I was discharged from the USAF in 1985 under a medical discharge 35-4 with a narrative reason for separation on my DD214 as "Discharge by reason of physical disability with entitlement to severance pay". My original DD214 was replaced with a DD215 that is dated 3 weeks after my date of discharge because it had the wrong SS#, last week I filed for another change using a form 149 to correct the separation code on the DD214 from the incorrect JFL to the Air Force specific JFL1.

I was injured in the line of duty and have a Line of Duty Determination AFR 35-67 in my medical files and in my possession.

I have a Form 88 Report of Medical Examination for the MEB which states Recurrent back pain 1981 to present (form dated 02 Aug 84) due to fall, treated with back brace and physical therapy, diagnosed a facet syndrome with myofacial chronic pain pattern.

I have a AF Form 356 Findings and Recommended Disposition of USAF Physical Evaluation Board that states 1. Facet Syndrome, Lumbar spine, with low back pain. Unfitting yes, Due to misconduct No, Incurred while entitled to basic pay yes, Degree of impairment is permanent yes, Percent 10% Va diagnostic code 5299-5295.

I failed to appeal the decision dated July 28 1985 and according to my American Legion advocate it was then finalized after one year and it is not possible to claim back pay for compensation based upon the original denial of benefits.

The notification letter stated:

"We have carefully considered your REOPENED claim for service connection of hearing loss and back disability.

We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

I do not know why it states reopened claim, this was the first claim filed upon separation from service.

I did some research and found this tidbit:

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and

Indemnity Compensation

General § 3.1 Definitions.

(k) Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.

(Authority: 38 U.S.C. 105)

To me this means that since the claim was denied that it conflicted with the rules established that the in the line of duty determination binds the VA to recognize the disability and compensate for it. After this decision was made which is in conflict of the laws and rules then anything after that should not have been adjudicated based upon:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

I have a request to reopen the claim based on new and material evidence, I had a comp exam last week and scheduled for a MRI in two weeks. The exam nurse indicated to my doctor that I needed x-rays of my hips and I had them done on Friday. So it looks like my claim will be addressed as it should have been 25 years ago and I will be awarded some comp rating.

Any thoughts about my legal musings? Do you think that a clear and unmistakable error of fact or law exists?

Victor

You can find additional information such as the evidence I submitted to reopen my claim at the following hadit post.

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How do you know you are going to be granted a VA disability? You were denied a rating in 1985 and now you come again with new evidence to reopen your claim, but how do you know you are going to get the grant? The only way to get an earlier effective date is to do a CUE most likely. Did the VA have all your SMR's and other medical evidence when they denied your claim in 1985?

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Basehorvet,

So, what exactly are you stating is a CUE by the VBA ?

What exactly was stated, in a final, unappealed Rating Decision that you are filing a CUE claim on ?

It has to be a legal error, clear and concise.

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Advise on the actual issue, Why did they deny it.

More info is needed for a confirmative answer to the cue scenario.

J

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I would base my CUE claim on

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

Which states that A service department (USAF Physical Evaluation Board in my case) finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs.

To me this is interpreted as the VA must award me a compensation rating of at least 0% on an injury that occured in the line of duty.

The only statement I have from the VA is the denial letter for my claim in 1985 which states

"We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

The CUE would be based on the fact that they did not follow the law and recognize the disability. My interpretation is that since I was discharged by the USAF by reason of physical disability that the VA is bound to recognize the disability. They did not recognize the disability, which means that they refused to be bound by the law, which should have stopped the adjudication process but since it didn't then the adjudication process should be null and void and the original date of the application of claim considered based upon the law of line of duty determination.

I am not a wizard at this but common sense indicates to me that if a vet is discharged by a service organization for a disability then the VA should also recognize the disability.

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I would base my CUE claim on

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

Which states that A service department (USAF Physical Evaluation Board in my case) finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs.

To me this is interpreted as the VA must award me a compensation rating of at least 0% on an injury that occured in the line of duty.

The only statement I have from the VA is the denial letter for my claim in 1985 which states

"We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

The CUE would be based on the fact that they did not follow the law and recognize the disability. My interpretation is that since I was discharged by the USAF by reason of physical disability that the VA is bound to recognize the disability. They did not recognize the disability, which means that they refused to be bound by the law, which should have stopped the adjudication process but since it didn't then the adjudication process should be null and void and the original date of the application of claim considered based upon the law of line of duty determination.

I am not a wizard at this but common sense indicates to me that if a vet is discharged by a service organization for a disability then the VA should also recognize the disability.

Basehorvet,

VA 101 - Throw common sense out the window - it does not apply to the VBA adjudication process.

In regards to the 1985 denial which states,"We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury."

What is the medical terminology that was used for this specific back disability ?

What Evidence is listed in the Evidence Section of the Rating Decision ?

The generic, plain old term back disability does not in and of itself address any specific disability.

Heck it could be a scar on the back - disc herniation - etc...., it could be a number of issues.

In regards to a claim of CUE,

"The CUE would be based on the fact that they did not follow the law and recognize the disability."

This would just be a denial right out the door, there is nothing specific here, no 38 CFR reg, no 38 USC reg/law shown to support

a grant for a CUE claim.

In regards to,

"They did not recognize the disability, which means that they refused to be bound by the law, which should have stopped the adjudication process but since it didn't then the adjudication process should be null and void and the original date of the application of claim considered based upon the law of line of duty determination."

No - it should not have "stopped the adjudication process" - - it should have been CONSIDERED in the adjudication process to help support

a grant for disability benefits.

It might help to keep in mind that a service member can certainly be discharged for an ailment that does not result

in residual disability even just a few months down the road.

jmho.

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