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Factual Error


Hoppy

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From Terrys decision, "the veterans has not sef forth allegatons of clear and unmistakable error, either of fact or law in teh".

Can a factual error be the basis of a CUE. I remember talking to my SO and told him something that I cannot remember and he said that there was a factual error. He immediately pulled out a statement in support of the claim and notified the RO of a factual error.

Lets say a claim was denied because the RO determined that the veteran was not treated for a skin disorder while on active duty. Many years later the SMR shows that the veteran was infact treated for a skin disorder. Might this be a factual error that would be sufficient for a CUE.

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Hoppy,

It would seem on the surface to be a factual error I must say however, was the condition related to the claim? If it was, then it was a factual error

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From Terrys decision, "the veterans has not sef forth allegatons of clear and unmistakable error, either of fact or law in teh".

Can a factual error be the basis of a CUE. I remember talking to my SO and told him something that I cannot remember and he said that there was a factual error. He immediately pulled out a statement in support of the claim and notified the RO of a factual error.

Lets say a claim was denied because the RO determined that the veteran was not treated for a skin disorder while on active duty. Many years later the SMR shows that the veteran was infact treated for a skin disorder. Might this be a factual error that would be sufficient for a CUE.

Precedent Opinions for 1989 to 2003

http://www1.va.gov/OGC/page.cfm?pg=2

PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004

Law on CUE

4.

A claim of CUE is a collateral attack on a final decision by a VA RO or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999).

Pursuant to 38 U.S.C. § 5109A(a), a RO decision is subject to revision on the grounds of CUE. See also 38 U.S.C. § 7111(a) (revision of Board decisions based on CUE).

"In order for there to be a valid claim of [CUE], there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc); 38 C.F.R. § 20.1403(a) (upheld in Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-97 (Fed. Cir 2000), cert. denied, 532 U.S. 973 (2001)).

CUE exists only when the error is outcome determinative, that is, the error manifestly changed the outcome of the claim decision. 38 C.F.R. § 20.1403(a) and©; Cook, 318 F.3d at 1344; Bustos, 179 F.3d at 1381; Disabled Am. Veterans, 234 F.3d at 696. "If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." 38 C.F.R. § 20.1403© (upheld in Disabled Am. Veterans, 234 F.3d at 697).

Disagreements about how the facts were weighed or evaluated and failures of the duty to assist cannot be CUE. 38 C.F.R. § 20.1403(d)(2) and (3) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision "has the same effect as if the decision had been made on the date of the prior decision," 38 U.S.C. §§ 5109A(b), 7111(b).

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Wings,

It does not sound like a CUE. They had the info. They read it. However, they did not schedule a C&P that would have explained it to them. Failure to schedule a C&P sounds more like a faliure in the duty to assist.

I will have to find the decision. I have it somewhere. It is from 1970. I am sure it will show that they did have the SMR before them and read it. The report that eventually led to my service connection in 1999 was in the SMR. When I filed in 1970 I claimed two of the most common symptoms. Intestional irritation and a skin condition. However I did not specify a name of the skin condition. I guess the adjudicator did not understand the relationship between angioedema/allergic edema and a skin conditon that left scarring . When I filed in 1999 I called it angioedema. Angioedema is a skin condition that can leave scarring. In 1970 the adjudicator did not make the association between angioedema and a skin condition and determined that I was not treated for a skin condition. At the time I did not know that angioedema was a skin condition. The disease can effect some many different parts of the body with such varied symptoms that I did not really understand what was going on. Any physician would know that allergic reactions are basically a skin condition. I have been told the angio refers to skin and edema refers to swelling. Thus, swelling of the skin is the derived from the word itself.

Thanks for all the info.

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Wings,

It does not sound like a CUE. They had the info. They read it. However, they did not schedule a C&P that would have explained it to them. Failure to schedule a C&P sounds more like a faliure in the duty to assist.

Hoppy, Failure of Duty to Assist, thus far, has never risen to the level of CUE. Hasn't been done so far. See

In Cook v. Principi, 318 F.3d 1334, 1338-

41 (Fed. Cir. 2002), the Federal Circuit, sitting

en banc, overruled the “grave procedural

error” doctrine recognized in Hayre v. West,

188 F.3d 1327 (Fed. Cir. 1999). The Federal

Circuit held that a breach of the duty to assist

does not vitiate the finality of a VA decision.

The Federal Circuit also reaffirmed its

holdings in Hayre and Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001), that a breach

of the duty to assist cannot constitute clear

and unmistakable error (CUE).

I will have to find the decision. I have it somewhere. It is from 1970. I am sure it will show that they did have the SMR before them and read it. The report that eventually led to my service connection in 1999 was in the SMR.

Hoppy, I think what you may be looking at is a Claim for "Earler Effective Date"?!

When I filed in 1970, I claimed two of the most common symptoms: Intestional Irritation and Skin Condition. However, I did not specify a name of the skin condition. I guess the adjudicator did not understand the relationship between Angioedema/Allergic Edema and a skin conditon that left scarring.

Hoppy, do your Service Medical Records (SMR's) show a diagnosis of, or treatment for "Angioedema", "Allergic Edema" or "Skin Condition"?

When I filed in 1999, I claimed Angioedema. Angioedema is a skin condition that can leave scarring.

In 1970, the adjudicator did not make the association between angioedema and a skin condition - and determined that I was not treated for a skin condition. At the time, I did not know that Angioedema was a skin condition. The disease can affect many different parts of the body with such varied symptoms that I did not really understand what was going on. Any physician would know that allergic reactions are basically a skin condition. I have been told the Angio refers to skin and Edema refers to swelling. Thus, swelling of the skin is the derived from the word itself.

Thanks for all the info.

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Adora,

Yes, one of the many symptoms caused by this disease is nasal obstruction. For twenty years after discharge about half of my doctors visits called the disease "allergic edema" and the other half "angioedema". The same symptoms with different names.

When I got my SMR in 1996 there was a report from an ENT doctor I saw two weeks before my discharge. The symptoms listed were nasal obstruction due to "allergic edema". The treatment prescribed was the same medications that were prescribed to this day. The varied symptoms made it difficult for me to make the association and I did not list the nasal obstruction on the 1970 claim for intestional symptoms and a skin condition. Skin is every where. It is on the outside of your body. It is in your intestines and your nose etc.

The reason I was service connected in 1999 was because I got the head of immunology and allergy to review the SMR and about 15 post service reports with both diagnoses. He wrote a note in my file that I have only one disease called angioedema. He said the disease onset while serving in the armed forces and has no known cure. The doctor was board cerftified for thirty years.

By the way I have not read any responses to my post about VSO's. I mentioned that I thought that the VA beeded to relax it's CUE laws. I plan to continue with another post as to what and why I think the VA should allow CUES for failure for duty to assist. It will be lengthly and I will really dig into the reasons that such flexibility is required by medical principals and fair and non arbitrary laws. I will also continue to attack what I consider a non adversarial system that has had a long history of being inadaquate. As citizens of this great country we do have constitutional protections from unfair and arbitrary laws. It will probably take me another 2 to 5 days to type it up. I might go out of town for the weekend.

Once again thanks for the info.

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Adora,

Yes, one of the many symptoms caused by this disease is nasal obstruction. For twenty years after discharge about half of my doctors visits called the disease "allergic edema" and the other half "angioedema". The same symptoms with different names.

When I got my SMR in 1996 there was a report from an ENT doctor I saw two weeks before my discharge. The symptoms listed were nasal obstruction due to "allergic edema". The treatment prescribed was the same medications that were prescribed to this day. The varied symptoms made it difficult for me to make the association and I did not list the nasal obstruction on the 1970 claim for intestional symptoms and a skin condition. Skin is every where. It is on the outside of your body. It is in your intestines and your nose etc.

The reason I was service connected in 1999 was because I got the head of immunology and allergy to review the SMR and about 15 post service reports with both diagnoses. He wrote a note in my file that I have only one disease called angioedema. He said the disease onset while serving in the armed forces and has no known cure. The doctor was board cerftified for thirty years.

By the way I have not read any responses to my post about VSO's. I mentioned that I thought that the VA beeded to relax it's CUE laws. I plan to continue with another post as to what and why I think the VA should allow CUES for failure for duty to assist. It will be lengthly and I will really dig into the reasons that such flexibility is required by medical principals and fair and non arbitrary laws. I will also continue to attack what I consider a non adversarial system that has had a long history of being inadaquate. As citizens of this great country we do have constitutional protections from unfair and arbitrary laws. It will probably take me another 2 to 5 days to type it up. I might go out of town for the weekend.

Once again thanks for the info.

Hoppy, I totally support your opinion! I'll do what I can to help. ~Wings

I would begin with a relaxed study of the decisions/case law found in

1) Hayre v West (1999), http://www.ll.georgetown.edu/federal/judic...ns/98-7046.html

Hayre's was a good decision, great decision - but was over-ruled when they decided Cook.

2) Cook v Principi (2001), http://www.ll.georgetown.edu/federal/judic...ns/00-7171.html

Read the single dissenting opinion in Cook:

MAYER, Chief Judge, dissenting.

In my view, a breach of the duty to assist the veteran by failing to provide a proper medical examination vitiates the prior decision of the Regional Office for the purpose of direct appeal. A duty to assist is an integral part of the claimant friendly, non-adversarial claims adjudication process of the Department of Veterans Affairs (VA). A breach of this critical duty compels us to create a judicial remedy tolling the finality of VA decisions for the purpose of appeal. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). This ensures that the VA’s duty to assist claimants does not become a hollow slogan. Id.

Congress expressly stated that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” H.R. Rep. No. 100-963 at 13, reprinted in 1988 U.S.C.C.A.N. 5782, 5795. In Hayre, we concluded that the VA breached its duty to assist when it failed to inform the veteran that it was unable to obtain pertinent service medical records the veteran had requested. 188 F.3d at 1334. But the VA’s duty to assist is not limited to obtaining medical or other government maintained records; it includes providing a thorough medical examination when necessary to develop the veteran’s claim. Id. at 1332.

Hayre described the specific actions of the VA as a “grave procedural error” that required tolling the finality of the Regional Office’s decision. Id. at 1333. It was not, however, limited to only grave procedural errors. The results of a veteran’s medical examination are often the determinative factor in the claim adjudication process. An insufficient examination may serve to breach the VA’s duty to assist the veteran in fully developing his claim. Therefore, administering an improper medical exam has as important an effect on the proper resolution of a veteran’s claim as a failure to inform the veteran that the VA was unable to obtain medical records. A veteran must rely upon the VA for a thorough medical examination just as he must rely upon the department to locate service medical records. Just as he must be able to assume, absent notice to the contrary, that the VA located and based its claim determination on the requested medical records, the veteran should be able to assume that the VA performed a thorough medical examination.

I would reverse the judgment of the Court of Appeals for Veterans Affairs.

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Wings

I have found some significant differences in Hayre, Cook and my claim. The key issue that I am contending is that in order to deny a claim on the basis that a veteran was not treated in service can require medical authority and to make such a denial would require that the adjudicator make a medical determination. My new phrase is “Proving a negative such as a veteran was not treated for a condition can require just as much medical authority as it takes to prove that a condition was the result of military service”. Basically it was not a failure in the duty to assist. It was an adjudicator making a medical determination. I am sure as my mind runs amok I will make more posts on this subject. Just before I started typing tonight I lost my reading glasses. I had them and a minute later I could not find them. I spent twenty minutes going bezerk. I finally found them pushed back on the top of my head.

I am beginning to remember these cases. I read about them and actually cited the descending opinion in my claim in 1998. I told the RO that I was of the opinion that Cook was based on arbitrary criteria and that the descending opinion would some day prevail if challenged again. I told them I planned to make such an appeal if in fact they made the effective date of my claim 2001 rather than 1998.

I made many posts to hadit in the late 1990’s. I complained that my claim was categorized as ”not well grounded” without a C&P exam. I complained about my difficulties getting a nexus letter. I complained about the failure to schedule a C&P exam. I was beginning to have delusions of grandeur as the congress started getting involved. Congress declared war on the “well grounded” issue. Congress leaned on the VA and the directive that required VA doctors to write nexus letters was announced. Eventually, I heard that there was a requirement that the VA schedule a C&P exam for any veteran with a post service diagnosis. My delusion of grandeur was that Congress was reading my posts on hadit and changing the laws just because of my claim.

The requirement that a C&P exam be required if the veteran has a post service diagnosis would in essence make the descending opinion in COOK the law of the land. I do believe that the steps Congress took were improvements. However, they were not sufficient to raise the inadequacies of the VA’s non adversarial system to the level of a system that directed veterans to competent legal representation. In the 40’s or when ever it was that the VA decided to restrict lawyers and developed their non adversarial system veterans were sold out.

I am developing a model of what I consider would be used by a competent attorney. It is basically the system used by the attorney my union got for a Workers Compensation claim advanced under California Labor Law. I would guess that many of these features have been incorporated into the processing out of service for current members of the military. This model would have prevented the problems that occurred in Hayre, Cook, and our own Terry Higgins and of course my claim. It will also direct the VA on how to resolve claims that were denied, undeveloped or otherwise would have been awarded if the veteran had competent legal representation.

I think that when I get this model done I will send it to my local senator and tell her to make it law. More delusions of grandeur

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Hoppy,

Don't stop now with those delusions of grandeur! You're on a roll.

I can relate to the "glasses on the head" syndrome! My answer to that was to go to the Dollar Tree and buy a pair for each room in the house. Problem is, they all end up in the same room, and I walk my legs off trying to figure out WHICH room. Everyone look out! Baby Boomers are coming to the beserk point TOGETHER. We are a force to be reckoned with.

All kidding aside, I would like to see the model when you finish it. Maybe it needs to be sent to my representatives too.

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AtEase

Wow have you really only been here for three days. Welcome to the board.

I am totally serious about this model and will keep working on it. Glasses or no glasses.

I should have mentioned that wings also was faced with really inadaquate advise and representation in the early days of her claim.

I am going to say Something lIke "They compensated the Japanese Americans who were placed in internment camps as the result of unfair and arbitrary policy and law. It is time to compensate American Veterans who were placed in the internment camp of inadaquate legal representation".

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Hoppy.

You are such a dreamer but its still really nice to dream... I used to do that but it seems my dreamin days are past... what a depressing thought

keep on dreamin Hoppy

Envious

Josh

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Wings

I have found some significant differences in Hayre, Cook and my claim. The key issue that I am contending is that in order to deny a claim on the basis that a veteran was not treated in service can require medical authority and to make such a denial would require that the adjudicator make a medical determination. My new phrase is “Proving a negative such as a veteran was not treated for a condition can require just as much medical authority as it takes to prove that a condition was the result of military service”. Basically it was not a failure in the duty to assist. It was an adjudicator making a medical determination. I am sure as my mind runs amok I will make more posts on this subject. Just before I started typing tonight I lost my reading glasses. I had them and a minute later I could not find them. I spent twenty minutes going bezerk. I finally found them pushed back on the top of my head.

I am beginning to remember these cases. I read about them and actually cited the descending opinion in my claim in 1998. I told the RO that I was of the opinion that Cook was based on arbitrary criteria and that the descending opinion would some day prevail if challenged again. I told them I planned to make such an appeal if in fact they made the effective date of my claim 2001 rather than 1998.

I made many posts to hadit in the late 1990’s. I complained that my claim was categorized as ”not well grounded” without a C&P exam. I complained about my difficulties getting a nexus letter. I complained about the failure to schedule a C&P exam. I was beginning to have delusions of grandeur as the congress started getting involved. Congress declared war on the “well grounded” issue. Congress leaned on the VA and the directive that required VA doctors to write nexus letters was announced. Eventually, I heard that there was a requirement that the VA schedule a C&P exam for any veteran with a post service diagnosis. My delusion of grandeur was that Congress was reading my posts on hadit and changing the laws just because of my claim.

The requirement that a C&P exam be required if the veteran has a post service diagnosis would in essence make the descending opinion in COOK the law of the land. I do believe that the steps Congress took were improvements. However, they were not sufficient to raise the inadequacies of the VA’s non adversarial system to the level of a system that directed veterans to competent legal representation. In the 40’s or when ever it was that the VA decided to restrict lawyers and developed their non adversarial system veterans were sold out.

I am developing a model of what I consider would be used by a competent attorney. It is basically the system used by the attorney my union got for a Workers Compensation claim advanced under California Labor Law. I would guess that many of these features have been incorporated into the processing out of service for current members of the military. This model would have prevented the problems that occurred in Hayre, Cook, and our own Terry Higgins and of course my claim. It will also direct the VA on how to resolve claims that were denied, undeveloped or otherwise would have been awarded if the veteran had competent legal representation.

I think that when I get this model done I will send it to my local senator and tell her to make it law. More delusions of grandeur

Hoppy, I suffer the same delusions - and more! I believe we have moments of pre-cognition: prior knowledge. Maybe it comes from having fine tuned survival instinct ;-) You gotta think positive! I knew when I filed my claim I would win. I had no doubts. I saw it happeneing the moment my pen hit the paper. You must see it inside your mind and your heart to make it happen. But you know that already ;-) Keep on keeping on - and Happy Memorial Day! HUGS! ~Wings

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Wings,

When I filed my claim their was no question in my mind that my condition started when I was on active duty. Every time I found a new requirement for service connection it was obvious that I could get passed that requirement. The amount of BS from the RO suprised me. Two denials that were based on total fiction. In these denial the RO made up laws. They made up medical facts. In the end my claim prevailed.

I will post more next week. I am on vacation within my perminant vacation status. I am at a Navy base near my northern most boat using their pay computers. MWR charges 2.50 an hour on this base. It is a lot better than paying kinkos 10.00 an hour. My PC with the modem is in San Diego. I have not figured out the wifi stuff yet.

Hoppy

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Hoppy,

See you next week!

Was there a "key" piece of evidence that decided your claim, or did you manage to engage their brains with some Logic 101?! ~Wings

P.S. Been doing any fishing???

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Wings,

Got home today. I was denied in 1970 by the false determination that I was not treated in service for a skin condition. I was denied in 1998 for the false determination I was not treated for angioedema while in service. The VA made the same mistake 28 years apart.

There were two key pieces of evidence. The diagnosis of "allergic edema" two weeks before my discharge and in 2002 I had the head of immunology and allergy review the diagnosis in service. He wrote a report that can be interpreted that "allergic edema" and "angioedema" are either the same disease or that in my case there is no way to tell them apart. He stated that the disease has no known cure. Initally they saw his report and still denied the claim. Then I hit them with the logic 101. They said there was evidence the disease was the result of post service employment. The evidence of post service onset was for a different and unrelated condition.

My solution for the VA is that I am going to continue to develop a request to congress that they extend the law they passed in 2000 requiring the VA to re-adjudicate claims from the prior five years that were determined to be "not well grounded" to include all claims back to the time attorneys were restricted from payment and veterans were instead directed to service organizations.

The central principal to my request will be "the dominance of medical principals". Basically, an earlier claim date should be established for any claim denied and later granted for service connection with only the submission of evidence that could have been developed at the time of the first review of the SMR for any purpose.

There will be a comparison of the procedure used by workers comp attorneys under state law as the model of competent representation for the development of injury claims. I will develop my notes on this system later. I can assure you that there were numerous safeguards unknown to the VA system that prohibited claims from falling through the holes in the system.

The premise will be addressed that attorneys working closely with the veteran and MD’s with specific training for the purpose of developing evidence is more likely to produce favorable results for veterans than VSO’s working in conjunction with VA C&P examiners. The possibility that the VSO organizations have staff attorneys is not sufficient. The front line screeners are the reason for the failures on my two claims.

The VA nor anybody else can demonstrate that their non adversarial system was in fact sufficiently non adversarial. Additionally, they cannot demonstrate that adequate systems to identify specific individuals responsible for the development of evidence on behalf of veterans did not in fact have hidden agendas such as personal dislikes for psych claims, non combat injuries or any other claims that were beyond their level of understanding. Their non adversarial system when it worked at its best was still insufficient when compared to the system developed by attorneys under state workers compensation laws.

This will be an ongoing project. The fish have shown up in San Diego, Tuna, Yellowtail and Mako Sharks are close by. I will do as much fishing as the pain free days will allow.

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Wings,

Got home today.

I was denied in 1970 by the false determination that I was not treated in-service for a skin condition. I was denied in 1998 for the [same] false determination - that I was not treated in-service for angioedema. The VA made the same mistake 28 years apart.

There were two key pieces of evidence:

1. [factual evidence of] diagnosis of "allergic edema" two weeks before my discharge; and

2. In 2002, I had the head of immunology and allergy review the diagnosis in service. He wrote a report that can be interpreted that "allergic edema" and "angioedema" are either the same disease or that in my case there is no way to tell them apart. He stated that the disease has no known cure. Initally, the VA read his report and still denied the claim. Then I hit them with the logic 101. [which was?] They said there was evidence the disease was the result of post-service employment. The evidence of post-service onset was for a different and unrelated condition. [Did the VA refute the IME with "post-service onset", or did they finally give sufficient weight to his medical opinion?].

My solution for the VA is that I am going to continue to develop a request to Congress: that they extend the law passed in 2000 (requiring the VA to re-adjudicate claims from the prior five years that were determined to be "not well grounded") to include all claims back to the time attorneys were restricted from payment and veterans were instead directed to service organizations. [somewhat grandiose, you're talking a half-century of legislation]

The central principal to my request will be "the dominance of medical principals". Basically, an earlier effective date should be established for any claim denied and later granted for service connection based on the submission of evidence that could have/should have been developed at the time of the first review of the SMR for any purpose. [good argument but I fail to understand "the dominance of medical principals". Was unable to locate this search term in any medical search engine!]

There will be a comparison of the procedure used by worker's comp attorneys under state law as the model of competent representation for the development of injury claims. [look to the 6th Ammendment Right for effective counsel and arguments against "ineffective assistance of counsel"]

I will develop my notes on this system later. I can assure you that there were numerous safeguards unknown to the VA system that prohibited claims from falling through the holes in the system.

The premise will be that attorneys working closely with the veteran and MD’s with specific training for the purpose of developing evidence is more likely to produce favorable results for veterans than VSO’s working in conjunction with VA C&P examiners. [Medical doctors do not develop evcidence in the same way that attorney's do. The Federal Rules of evidence do not apply to the VA's non-adversarial system; so they say]

The possibility that the VSO organizations have staff attorneys is not sufficient. The front line screeners are the reason for the failures on my two claims. I HEAR YOU!

The VA nor anybody else can demonstrate that their non-adversarial system was in fact sufficiently non adversarial. Additionally, they cannot demonstrate that adequate systems to identify specific individuals responsible for the development of evidence on behalf of veterans did not in fact have hidden agendas such as personal dislikes for psych claims, non-combat injuries or any other claims that were beyond their level of understanding. Their non adversarial system when it worked at its best was still insufficient when compared to the system developed by attorneys under state workers compensation laws.

This will be an ongoing project. The fish have shown up in San Diego, Tuna, Yellowtail and Mako Sharks are close by. I will do as much fishing as the pain free days will allow.

Keep on fishing ;-) I like the way you think! I'm sorry if it looks like I've picked this apart. Just wanting you to know I'm reading it - and have posted a few comments in brackets. I'm not up to snuff on MT Logic 101, but am willing to brush off the cobwebs ;-) HUGS!! ~Wings

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Wings

I always respect your replys and questions. It might take me a couple days to respond. I plan to go fishing tomorrow. Also, There is one question you asked that I have to research.

Hoppy

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Wings and all other interested.

I have been preoccupied over the last week. I feel good and I am doing good. I have been consumed by my obsession with the VA and their BS. I have been working on something new. It will be posted soon. I have been able to sneak out from my obsession and go fishing a couple days.

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Hoppy, I am very interested in your research I have a pending claim for EED (ealier effective date), so still obsessed but mildly so . . . . I'm in the garden all day long of late. I'll post some pictures before harvest ;-) Just flowers and veggies lol! Adora

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I am thinking about the rating I should have gotten in 1972 instead of the 10% I got after the VA slapped together some facts and low balled me. See, I was in such bad shape I did not even know to fight back or what was happening. This is the way it is with really disabled vets. Often they don't know what is going on until they get booted out of the service or low balled by the VA. I better go to the garden and set the traps again. I am trying to catch the damn frogs because they keep me up at night.

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John,

This obsession of mine works real good for your type of claim. I was serviced connected at "0"% at discharge for a knee condition. MY VSO did not fight it, so why should I. 10 year later I had surgery on the same knee at the VA. After the surgery I was rated 10% because I appealed to the BVA for a convelescent rating for one month after the surgery. It still did not occur to me that I should appeal the 0%. It just got tacked onto the other appeal.

The funny thing is that the decision giving me 10% cited the chronic symptoms noted in the SMR. I guess if it had been appealed earlier I would have got 10% ten years earlier.

Wings

MY new research takes big round house swings at this BS VA system. I am sure it is so inclusive of previous error that it will cover your situation as well. However, I am not using previous decisions. This is new law I am advancing. It is almost done. I will probably put it up tomorrow.

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