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.

[john999]

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.

[Hoppy]

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.

[Hoppy]

Wings

If you post veggie pictures I will post pictures of fish. That is of course I can figure out how to post the pictures. It took my days to get that little picture up into the corner of these posts.

[Hoppy]

Wings,

The dominance of medical principals is a term I invented. It is taken from advice I got from a probate attorney when he explained the dominance of language used in trusts. Some language is dominating some is not. Also, in the early days of my claim Alex and LL used to get in some discussions. LL kept citing the M21 and Alex kept telling LL to consider the importance of the medical principals.

As to rules of evidence, the thing I am working on addresses the proceedures and people who should be involved in the collection of evidence. It is a big round house swing. One like I took at Social Security when they denied my claims. That is of course you remember how I attacked them.

I forgot to use the phrase "front line screeners" in this new thing I am working on. I am glad I re-read this post. I will have to put that phrase in there somewhere.

[carlie]

Hoppy,

I finallycame across a BVA decision that might be an example of FACTUAL ERROR, that a vet presented to BVA. This particular claim was in reference to whether New & Material evidence had been presented for a re-open. Sorry, but it's the closest thing I've been able to find. Hope it helps a bit.

carlie

Statements by the veteran since the October 1977 Board

decision also do not present new and material evidence. In

December 1991, the veteran reported that the November 1991

psychiatric examination contained several factual errors,

which he outlined. The facts outlined as in error relate to

background information and to one possible symptom; he

disagreed that he had been sleeping well as reported by the

examiner. The background facts are not probative on the

issue of whether a psychiatric disability was acquired in

service. The fact that the veteran was not sleeping well at

the time of the examination also is not probative of the

issue. In February 1978, he reported that he had received

treatment at a VA facility and from a private physician in

late 1976 and early 1977. This evidence is not new as the

veteran testified to having received the same treatment

during a hearing at the RO in July 1977, which was taken

into account during the prior appeal. In August 1991, he

reported that he was currently receiving treatment for PTSD

at a VA facility. Records received from the VA facility do

not indicate any treatment for PTSD. Moreover, PTSD was not

indicated or diagnosed thereafter during the November 1991

psychiatric examination. The Board finds, therefore, that

the evidence received since the October 1977 Board decision,

when viewed in light of all the evidence, both old and new,

is not new and material evidence and the claim may not be

reopened. 38 U.S.C.A. §§ 5108, 7104(; 38 C.F.R. §§

3.156(a), 20.1105.