Terry -your Cue Claim

[Berta]

How much time is left to file at the CAVC?

Terry I went over discussions we had here back in Nov 2005 re: your CUE-

I do believe you have a valid CUE claim-

and I think this is key to it:

the VA before -you were discharged -had evidence of your SC disability-

You sure stated the Catch 22 well here recently -

they can hide evidence , then when the vet finds it, it becomes "new" evidence, thus they stave off the EED.

But CUE regs contain this phrase:

In Damrel the

Court held that for there to be clear and unmistakable error

"(1) '[e]ither the correct facts, as they were known at the

time, were not known before the adjudicator (i.e., more than

a simple disagreement as to how the facts were weighed or

evaluated) or the statutory or regulatory provisions extant

at the time were incorrectly applied,' (2) the error etc ----

The correct facts, in your case "were not known before the adjudicator"---

this seems to support the fact that the MMPI reports and other records were in existence

at some point with VA -in your case-yet the adjudicator did not know of them-

The correct facts- could also be that the VA had no legal ratings and definitions of schizophrenia at that time.

They did say :

"The RO should provide the veteran

with a copy of the requested VA MMPI

record from 1976, if it has not already " (Nov 2005 Hadit discussion)

So this does support the record existed ----but was unknown to the adjudicator-

My point is that I hope you do not give up on this Cue claim - dont think you will at all---

[Alex]

Berta –

But if you bring those VHA records in under Bell, which held that VA has constructive notice of any document anywhere in the VA system, won’t it simply be a case of the weighting that should be ascribed to the evidence, which is not an issue for CUE?

Alex

[Berta]

Alex-your point is very well taken-

I am hoping that the VA can recognise that Terry had schizophrenia in service and was treated for it in service-(he was hospitalized for it)

This same problem came up with a friend of mine-his in-service manic bi-polar condition was not recognized as such until many years later. The BVA gave him 12 years retro but still- his initial claim was denied for many years and he re-opened 15 years ago.

When medical criteria changes and/or recognizes an illness- years after at least 10% manifestation in service, the veteran-whose initial claim was timely- does have a difficult task in proving CUE.

Schizophrenia and manic bi polar were not really understood in the 1970s by the medical community.

The CUE denial I never appealed years ago ,was found by the Regional counsel and granted anyhow a few years ago and here I was right all along on it-but failed to appeal it-

so I guess I dont want Terry to let this CUE go without pursuing it.

Alex is correct of course- for you CUers like me-- weight of evidence ,relative equipoise, duty to assist-not for CUE claims-

My present CUE only refers to legal issues. The medical issues were already resolved.

[Hoppy]

I have to wonder if Bell would be modified or overruled if continually contested. CUE needs to be redefined by the courts. The assumption that weight was given to a document in the file requires a large leap of faith. There are many reasons weight would not have been assigned. The examiner could easily confuse diagnostic terms to the point of falsely determining in his mind that the report he is looking at is for a different and unrelated condition. Then the adjudicator fails to note in the decision that he had made such a mistake.

In such an event is weight really given to the misinterpreted report? I say NO. There would be no reason for the adjudicator to read or apply weight for a condition that he falsely determined to be unrelated. The proof that the adjudicator made such a mistake would be discoverable by a medical report generated at a later date that overturns the original decision without any new and material evidence other than a clarification of evidence that existed in the file at the time of the original denial.

This is why I like my concept of “dominance of medical evidence”. “There are medical principles so universally recognized as to constitute fact, and when in accordance with these principles disability as the result of service is established”. In the event of such a situation where medical evidence that existed or could have been developed at the time of the earlier denial results in a reversal of a decision. Then the date of claim would be established at the time of the earlier review. Appeals and file statutes to be set aside. I would advance the position that CUE exists when the failure of duty to assist results in a contradiction of medical fact,

Additionally, I would contend that any law that allows the VA to set a later date of a claim when the medical principals clearly show that the condition was the result of military service are unfair and arbitrary and violate the Constitution of the United States. Such cases where the medical evidence would allow service connection based on reports generated at a later date occur only when the veteran has incompetent representation from the VA and the VSO system. In my book the whole VSO system was inherently inferior and was a violation of our constitutional rights.

The courts I have experience with find the interpretations of their prior decisions by the legal community most fascinating. The courts take great pleasure in clarifying and redirecting the legal community as to how they should apply their prior decisions. My favorite is Kalina V Fletcher. This is a case that directly affects the behaviour of prosecutors. Prosecutors (who are attorneys at law) appealed this case to the Supreme Court even though they lost a unanimous decision in appeals court. The Supreme Court again in a unanimous decision shot down the prosecutors.

[Hoppy]

Terry,

I felt like I had a good night last night. The most arbitrary logic advanced by the VA is the idea that because a document is in the file means that it was given weight. There are many reasons it would not have been given weight. The fact that the same document was used to make the award at a later date in your claim should be sufficient evidence that it was not given weight in the original denial. This works better for your claim than it does mine. The biggest single failure I ran into in my claim was adjudicators making medical decisions.

Keep after them.

[Berta]

Hoppy -great rationale here-

The fact about 'weight' of evidence for Benefit of doubt or a preponderance of-

still means that the VA owns the scale and many times I have said here-

they stack the pro and con evidence on the scales of Justice and then they kick Justice in the knee to make sure the vet does not succeed.

What I see as the only way around this- and you certainly have a great take on it all-is that -when an adjudicator makes a medical decision- in essense that is what they are doing-based on medical evidence-

the minute they pick up a Va pen or type onto their VA worksheet a diagnostic code or use anything whatsoever from 38 CFR-in documented reference to a claim ----

if they err- I say that is a Legal error, therefore potential CUE-if not NODDed within a year.

If you take the DTA and Benefit of Doubt out of that -since these do not constitute CUE errors-

a CUE can rest on the Legal way the adjudicator manipulated the evidence and then cited DC codes and 38 CFR stuff.

Your example makes sense-

"In such an event is weight really given to the misinterpreted report? I say NO. There would be no reason for the adjudicator to read or apply weight for a condition that he falsely determined to be unrelated. The proof that the adjudicator made such a mistake would be discoverable by a medical report generated at a later date that overturns the original decision without any new and material evidence other than a clarification of evidence that existed in the file at the time of the original denial."

I get what you mean-the issue is NOT a weight of evidence issue-therefore the VA cannot deny a CUE saying that was the claimant's basis of CUE.

[john999]

Berta

We know the VA has it "Greasy Thumb" on the scale in benefit of doubt cases. I have been through that when there was little doubt but what the VA invented.

[Berta]

There was- as far as I know- a prejudicial error in Look V Derwinski-(COVA) but I cannot find that case yet-

It seems that in Look the VA held an 1151 issue against the veteran.It became prejudicial to the claim.

I think that is what they did to me-and Rod- due to the fact that his disabilities were 100 %SC and then over 100% under 1151 they denied him any SMC -yet VA case law which I sent with my CUE on this says he should have gotten SMC.

This statement from VARO is- I believe prejudicial-the SMC issue seemed to be still open so I asked them to decide it and send me the retro.

"Mrs Simmons, the veteran was not entitled to SMC under any circumstances."

They actually said it twice- in two separate letters. No reasons, no basis-

And the veteran died with over 100% in Sec 1151 disabilties.

Then I found in my c file a statement that they did consider him but denied for SMC so I Cued it.

I sent 4-5 BVA decisions and an OGC op and also stuff from their own M21-1 that makes their statement ludicrous- and prejudicial- but I stuck solely to their legal errors in my claim.

Sec 1151 claimants are as eligible for SMC as any other claimant.Except for auto allowances and a few other benefits.

Terry I feel the VA has probably been prejudicial to all of us-

but we have to narrow it down to legal error under 38 to challenge this.

I dont even care if they are prejudicial to me- as long as they eventually get it right.

VA gets out of the weight of evidence rule in CUE claims-

a vet cannot use preponderance of evidence or even relative equipoise in CUEs- otherwise I know more vets would be cueing older decisions.

What I like about the VA- as they draw out a claim with SOC, SSOC etc- is that there is a pretty good chance they will put their foot in their mouth the more they have to read over the claim and prepare and manipulate another SSOC. That is where not only the veteran can turn the claim around with a good rebuttal but also- those old SSOCs at some point could be the bases for future CUE claims.

[john999]

Berta

You are right. The more the VA comes up with SOC's and SSOC's the wider and deeper your claim can become. My last SOC added and included conditions I had never been service-connected to before due to them accepting my IMO entirely.

[Hoppy]

I can not imagine a civil judge allowing an insurance carrier to benefit and a claimant to lose wage loss rights due to an error on the part of the claims adjuster. To the contrary the insurance carrier could get wacked with stipulations and fines and jail if the BS got out of hand.

The whole VA non adversarial system is upside down. It is worse than the system available to injured workers. I was elidgilbe for voc rehab under state law and was unaware because the carrier failed to notify me as required by law. The case went the five year run and was closed before I found out. I went to the rehab bureau who demanded that the carrier produce evidence that I declined voc rehab as required by law. The carrier had no such evidence. The carrier cited a case law that said I could not re-open a closed claim ans they argued that my attorney should have notified me.

The rehab bureau (which is a state arm of workers comp.) said they would take the carrier to the appeals board. They said they would seek compensation for all periods of time I was out of work even if it excdeeded the five year run. Basically, they had it rigged so the carrier had to have committed fraud on the court by making a statement that the case had been settled according to all requirements of the law. Fraud on the court has no time statute. Additionally, the rehab bureau notified the carrier that the fact that I had legal representation does not excuse the carrier from its obligation to comply with the law.

I remember the early days of my claim there were some posts on the internet by two attorneys who had worked for the VA. They were in absolute shock as to the way the VA treated veterans. I won my claim a year and a half ago and I am still in shock.

[Hoppy]

This should be my last rant on this level. I am working on a letter to my local Senator.

All of the case law (Green, Bell, Look, Russell, Cook, Hayre) involves cases where the veteran clearly was in need of competent medical/legal representation. With such representation none of the problems ruled on by the courts would have occurred in the first place.

The name non adversarial is a misnomer that gives veterans a false sense of security. Any non adversarial system that does not allow the veteran the benefit of the outcome that would have happened at the time of the first decision based on the medical facts known at any time, is not non adversarial. There is too much legal BS and not enough credit given to medical realities.

Congress took great steps to right the ship in 2000. However, they need to jump in again and free American Veterans from the “internment camps of legal malaise” that were established by the misconception that front line VSO’s and VA employees would be sufficiently competent to assist veterans. The entire history of the case law is the history of the failure of those responsible for getting it right the first time around.

[Hoppy]

Sorry I had to continue with this one. Thanks Allan this CVA stuff came from one of your posts.

The CVA has indicated that the duty to assist under section 5107(a) is not unlimited, nor is it a license for a "fishing expedition," but that it requires only development of evidence which is relevant to the claim. Counts v. Brown, 6 Vet. App. 473, 476 (1994);

When comparing the VA "non adversarial" system to the system availailable to injured workers under state law this single attitude that permiates the entire VA system from the front line VSO and VA employees all the way to the CVA is absolute proof that the VA "non adversarial" system is in fact beyond the scope of all involved. These people can not see the forest hrough the trees.

Only a doctor can tell which evidence is relevent in many claims. Then the adjudicators say "it did not seem relevant to me and I am not required to go on a fishing expedition.

In a non adversarial system the law should say. A DOCTOR MUST HAVE REVIEWED ALL REPORTS, TESTS AND TREATMENT NOTES PRIOR TO THE DENIAL OF A CLAIM. ADDITIONALLY, FISHING IS REQUIRED. BRING THE DEEP SEA GEAR.

When my industrial injury was adjudicated under state law. The attorney required that the case be reviewed by a MD. They brought out all the medical legal fishing gear they had. They got radar, spotter airplanes, sonar, big fishing reels with steel leader, big hooks harpoons and flying gaffs.

THE MORE MONEY THE ATTORNEY GETS FOR THE CLAIMANT THE MORE MONEY GOES INTO THE POCKET OF THE PROFESSIONALS. Also, they have a commitment to protect the rights of injured workers. Did I mention that the MD was Chineese. He probably learned in school or from his parents about the tens of thousands of Chineese imigrants who are barried along side the american railroad system.

The congress was on the right track in 2000. However, they should have brought significant relief to the veterans whose claims were adjudicated prior to 1995 by adjudicators pretending to be doctors and who left the fishing gear at home..

[Hoppy]

Terry,

The doctors on the teams did not review claims as a matter of routine. They only did so when asked by the non MD members of the teams. Additionally, when the team MD was asked for an opinion, such opinion would be clearly noted as coming from the team MD in the decision. This according to my SO who was a rating specialist for the VA for 20 years before becoming an SO.

In two decisions on my claim that were 28 years apart adjudication determined that I was not treated in service for a disease that I was in fact treated for and prescribed medication for while on active duty. No MD opinion was sought in any of my claims before being denied