Factual Error

[Hoppy]

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.

[Wings]

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???

[Hoppy]

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.

[Wings]

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

Edited June 6, 2006 by Wings

[Hoppy]

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

[Hoppy]

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.

[Wings]

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