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To Cue Legal Beagles-


Berta

Question

"In Damrel v. Brown, 6 Vet. App. 242, 246 (1994), the CAVC

held that the constructive notice rule first announced in

Bell was not applicable to decisions rendered prior to Bell

and held that where CAVC opinions formulate new

interpretations of the law subsequent to an RO decision,

those holdings cannot be the basis of a valid CUE claim.

Although the CAVC has recognized that a viable CUE claim may

be premised on the theory that the RO had failed to consider

evidence of a high probative value, the Court has made it

clear that, for such a claim to succeed as to an RO decision

issued prior to February 1990, the RO must have denied the

very existence of the evidence. See Glynn v. Brown, 6 Vet.

App. 523, 531 (1994) (CUE not found where prior decision "did

not deny the existence of an in-service injury" but denied

only that "any injury appellant may have sustained during

service did not aggravate his preexisting condition"); cf

Russell, 3 Vet. App. at 319 (RO's denial of existence of

evidence of record constitutes undebatable error).

According to VAOPGCPREC 12-95, if, subsequent to a final AOJ

denial prior to July 21, 1992, a claim is reopened and

benefits awarded, the AOJ's failure to consider evidence in

VA's possession, but not actually in the record before the

AOJ, may not form the basis for a finding of CUE. In that

instance, when a claim is subsequently reopened and benefits

are awarded, the effective date will be the date on which the

reopened claim was filed, per 38 USC 5110(a). Moreover, the

opinion notes that in VAOPGCPREC 12-94, GC had concluded

that, based on a United States Supreme Court holding,

precedential decisions of the Court of Veterans Appeals

generally do not apply retroactively to cases which have been

finally decided, but do apply to cases still open on direct

review. "

From : http://www.va.gov/vetapp04/files/0400460.txt

This is a fairly recent BVA decision-

I like this part :

"RO's denial of existence of

evidence of record constitutes undebatable error".

I have letters stated that VA denied the existence of some of Rod's records-

it may have no bearing on my claims at all-

This is my point- if the VA says that "the veterans SMRs were lost in the St Louis Fire" and then the veteran via NARA gets those SMRs themselves-(this has happened to 2 vets I helped and to some vets here)

therefore hasn't the VA comitted a CUE , as an undebatable error, by 'denying the existence of evidence?'

Did anything come along since Russell, 3 vet app, to overrule that statement in this BVA decision?

Thanks all---

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Guest fla_viking

Dear Berta.

The pratice of Bell at the BVA level is to apply Bell to wipe out back pay prior to Bell. Any issue of back pay post Bell was ignored by the BVA.

I dont know why. It sure seems there are allot of court rulings in our favor. But lawyers are not even wanting to take CUE cases to the court. the lawyers said the Court had made it basicly impossibel to win a CUE claim.

It woiuld be nice to have a lawyer on line here to review our discussions and point us in the right directon.

Even though my personal case as it is written by the BVA. IS the definition of CUE. I belive I will loose my CUE case.

Terry Higgins

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  • HadIt.com Elder

Berta,

The presumption the VA is probably working on is that it is the responsibility of the veteran to prove his claim with reports and records. Thus, the fact that the VA chooses to assist in finding missing records does not relieve the veteran of his responsibility to produce the evidence necessary to advance the claim.

There should have been a requirement that the Veterans administration schedule an exam with a doctor who has obtained and reviewed the entire SMR at the time of the first review of the file for any reason. The doctor doing the exam should be prescreened and chosen by the veterans advocate. This is what has been required by a competent attorney's working industrial injury claims for decades.

Much of the case law and veterans problems were caused by the VA's own screwed up inability to identify potential disability and allowing VSO's rather than attorneys to try and unravel the VA's screwed up system.

See my post on this issue coming soon to hadit

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Guest fla_viking

Dear Hoppy

That is a good observaton of the realitys of the VA system. I would like ot add. IN the mid 70's when I went through the system. VA had rules that if you were diagnossed as a personality disorder. They did not do a C&P examinaton. Allot of vets were psychotic even though labeled as a personality disorder. Allot of those personality disorders had much more sever problems but due to convience of the VA. No furhter investigatons were made.

Terry Higgins

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  • HadIt.com Elder

Terry,

I have a real good example of the personality disorder BS on my list and the entire paper trail to prove the BS. It will be posted soon.

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