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Terry -your Cue Claim

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Berta

Question

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---

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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

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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.

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  • HadIt.com Elder

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.

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  • HadIt.com Elder

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.

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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.

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  • HadIt.com Elder

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.

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