Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

Factual Error

Rate this question


Hoppy

Question

  • HadIt.com Elder

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.

Link to comment
Share on other sites

  • Answers 23
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

Recommended Posts

  • HadIt.com Elder

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

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

  • HadIt.com Elder

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".

Link to comment
Share on other sites

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

Link to comment
Share on other sites

  • HadIt.com Elder
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

Link to comment
Share on other sites

  • HadIt.com Elder

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

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...

Important Information

Guidelines and Terms of Use