Clear And Unmistakable Error

[foreveryoung]

HI

Can anyone tell me if this may meet the CUE requirements.

I had a claim reviewed and denied by the BVA in 1992 and left it drop.

After reviewing my medical records, which I didn't have at my hearing, I noticed some statements that were not referenced in the VBA decesion. I believe these statements when read tell the story. Anyway about 2-3 years ago I had a C&P exam by a VA Doctor. After showing the Doctor these same records, he concluded that I have been right all along and the VA did grant service connection. I fogot to mention that I also had my family Doctor review my reecords prior the the C&P exam and I showed the VA Doctor and he agreed.

So does this meet the burden, that when called to the attention of later reviewers compels the conclustion, to which reasonable minds could not differ, and the result would have manifestly different but for the error?

Thanks, Dave

[Guest Berta]

Sounds like a CUE- somewhere here under FAQs I posted a little about CUE. I have a lot posted at the old hadit board and under a Search it will come up.

1. Final decision

2. Va erred in application of their regs

3. manifestly different outcome (IE more retro)

Here is a beauty- retro back to 1982 on the CUED decision:

http://www.va.gov/vetapp01/files02/0117428.txt

[foreveryoung]

Thanks Berta for the reply and the CUE data.

I have a hearing on 12 Oct. 05 via satellite and hope to get as much info as I can together for my claim.

Thanks again, Dave

[foreveryoung]

Terry

What if there were records availible or the VA may have lost, but should have had? Like an operation report, which is completed by a Doctor during or after an operation. I was told by a VA Doctor there should have been one in my C-file.

[Guest Berta]

Forever- as I see it -if the VA should have known about it or any record (38 CFR 5107)

in their Duty to Assist they should have obtained it or asked you to get it, and if they denied due to not having this evidence, that would be a Clear and Unmistakable error on their part.

"Generally, either the correct

facts, as they were known at the time,

were not before the Board, or the

statutory and regulatory provisions extant

at the time were incorrectly applied"

I took that out of the following CUE granted:

http://www.va.gov/vetapp01/files02/0117428.txt

That claim might help you- the doctor was correct- it should have, might have even been in the c file and no one read it-

violation of 38 CFR 5107(a) - basis for a CUE-

Please go to my post on CUE 38 CFR 5107 -

I recently had VA call a CUE on itself in 3 days due to their obvious violation of this basic VA reg.

I neverhad to spell it all out before in any claim or rebuttal and had to manipulate it to fit my situation but you will see what I mean.

Berta

[Guest Berta]

Terry- that is why I belive the new regulation that might be pending is a good deal-if vets have made suggestions and if they fix it.

I dont know if time is left-any vet can respond to them with ideas )

Director, Regulations Management (00REG-1) August 9, 2005

Department of Veterans Affairs

Room 1068

810 Vermont Avenue , N. W.

Washington, D.C. 20420 Re: RIN 2900 –AM15

That is where I wrote to- I need to find the actual proposed reg-

It was all posted on the old board-

This is my position-the last page of my letter-

"A veteran’s branch of service is clearly typed onto their DD 214.They submit this document with or shortly thereafter their 21-526 form. If the records “did not exist” as stated, therefore this regulation could EXCLUDE many claimants in that respect, as it means that the veteran never received an entrance physical, shots, any medical attention at all, no annual check ups, and no discharge physical from the

Military .

How can a man or woman serve this nation and yet have “records that did not exist” when VA decided the claim as these records had to have been in existence yet for some reason were not available at the time of the initial claim? That statement alone would give a VARO adjudicator the means to again deny what could well be a probative valid claim for compensation.

Thank you for the opportunity to respond to this proposed rule. I hope you will consider what I have mentioned here."

OK- I was specifically referring to SMRs that are lost but then might turn up---

Still-another avenue I mentioned is that a veteran who gets SSA or SSI- I bet missing military info is right in those files as the SSA has to get your SMRs and service records to see how much you paid into SSA when you served-

Rods SSA records not only had stuff from both of his periods of service but additional info on his PTSD (from Newark VA) -

Oddly enough when I requested the Newark info they said they had no record-

they didnt -it looked like his original Newark VA records were there in his SSA files.

Edited September 26, 2005 by Berta

[foreveryoung]

Thanks for the replies.

It just seems alittle strange that an operation report would somehow fall out of my records folder. I have a copy of my SMR's everything appears to be there minus the operation report. I am only going by a VA Doctor suggestion that there should be a report. SC has already been proven about 2 years. I am trying to make them go back to when I first filed, 1990.

Not sure when the fire was, but I believe I have all my records less this report. What I believe is because of the surgeons error he either never had one or he trashed it. Since the VA maintains all records the burden should be on them to produce it, since thay know an operation was performed Correct?