32 Year Old Cue

[WYnWn]

Hi,

These are the facts (documented, not alleged) of my situation:

1. Medical discharge under honorable conditions (after 4 yrs. 9 mo. active duty service, USN) in 1979.

2. Injury to right knee certified as qualified service two years prior to commencement of enlistment in 1975. Two separate injuries to each knee with aggravation to both knees documented in medical records. Injuries and aggravation documented to right knee were separate injuries not related to surgically repaired and well healed right knee (previous to enlistment) that sustained two injuries during active duty.

3. PEB rating 20% (bilateral knee-chondromalasia patella, arthritis).

4. Applied for rehab. educ. benefits while working on masters degree under GI Bill in Colorado. Denied by VA. Rating of 20% was dropped to 0% total. No physical examination; records from the pre-enlistment physical qualifying me for enlistment were copied into assessment verbatim as "evidence" justifying denial and reduction. No mention of USN medical record entries which contradicted these statements and provided chonological documentation of injuries and aggravation specifically stated in clinical records while on active duty.

5. Timely filed Notice of Disagreement. Denied again.

6. Was told by college VA rep that I "need not bother to appeal", "appeal would be denied" especially because I was" female" and "the guys needed it more than I did".

7. Two years ago I tried to re-open the claim. VA insisted I file a new claim, but I insisted it should be a continuation of the original claim in 1979.

8. I contacted state senator's office; was assigned a VA rep (not employed by VA).

9. Filed CUE. Granted because of no record of problems with left knee prior to service. VA essentially made it a new claim by requiring C&P exam and treating it as a new claim. VA continually ignores any mention of right knee except for their residuals denials.

10. First decision: service connected for left knee only with 0% disability rating, effective date 1979 because I filed within a year of separation. Right knee denied on basis of 1979 denial: residuals to right knee surgery.

11. All medical records are distinctly clear of any problems with right knee for five years prior to injury to rt. knee during active duty service.

12. C&P exam at VA (not terribly impressive exam in terms of comprehensiveness, example: Dr. stated no problems with gait observed despite the fact that he walked ahead of me entering and exiting the tiny exam room).

13. Second decision: 10% rating restored for left knee; effective date changed to 2010 because the VA's exam was the "first evidence" of problems. Same denial and reason on rt. knee. After recoup of separation pay, benefits to begin in 2014.

14. Last disagreement submitted about a month ago, citing VA regs, Congressional mandates, etc. Told by rep this was last before I would (likely) need to hire an attorney and appeal.

15. Was enrolled as Priority Group 3.

I hate to think of having to hire an attorney who would share in whatever I'm entitled to receive. Yet, despite all the research I've done, I also realize, not being an attorney, that things can/could be brought up that I would have no knowledge of or clue about how to handle.

Any thoughts, recommendations, ideas would be greatly appreciated.

[WYnWn]

Yeah, I have read about that but it's not the case here. The first regional office just plain fubared.

[carlie]

Oh, and, whatever happened to the benefit of the doubt going to the vet?

WYn,

I may have missed it but I don't remember reading of any evidence that has been adjudicated to

be in relative equipoise.

That would be needed first in order for the BOD to be for application.

JMHO

[WYnWn]

Sorry, that wasn't intended to be a serious apurtenance. Was just being facetious.

[NSA-Saigon-ET]

NSA,veral times

For correction - NO -CUE is not a one shot deal.

CUE can be filed several times on the exact same claim issue -

IF it is filed under a different theory.

Also, CUE can be filed on the exact same claim issue at different levels of appeals.

I just happen to see this and thought it appropriate . seems like it sorta contradicts what you were saying.

CUE: How Many Bites at the Apple Do You Get?

<a name="OLE_LINK1">Hillyard: CUE, How Many Bites At the Apple Do You Get?

Joseph C. Hillyard v. Eric K. Shinseki, Opinion Number 08-1733, decided March 29, 2011 involves the ability of a veteran to filed a second motion to revise in light of CUE after having been previously denied a similar motion on a different theory.

The veteran suffered a head injury and later made a claim that it caused a mental condition. Such claim was denied by the Regional Office and Board.In 2001, the veteran filed a motion to revise the Board's decision based on CUE because the Board failed to adjudicate a claim for an adjustment disorder and did not discuss whether such disorder pre-existed service. The motion was denied.

The veteran filed another motion to revise the Board's decision based on CUE in 2006 and this time argued the Board had a duty to sympathetically read his claim and apply 38 USC § 105(a) and 1111. The Board determined that although the arguments in support of the veteran's 2006 motion were different from the 2001 motion, the arguments pertained to the same issues and therefore the later motion should be dismissed.

Before the Court, the veteran argued because a motion to revised based on CUE must be plead with specificity, a claimant remains free to make a new motion based on an unraised theory.

The Court had to wrestle with two competing Federal Circuit decisions. InDAV v. Gober, 234 F.3d 682 (Fed. Cir. 2000), the Federal Circuit upheld the validity of 38 CFR 20.1409© (which says once a final decision on a motion to revise is made regarding a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of CUE and subsequent CUE motions will be dismissed). Whereas in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), the Federal Circuit stated each new CUE theory is independent for res judicata purposes, so a narrow reading of what CUE theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new CUE action.

The Court ultimately accepted DAV as controlling because it contained a clear discussion of 38 CFR 20.1409© and the decision promoted judicial economy and finality. Thus, the Court affirmed the dismissal of Hillyard's CUE claim. The Court recognized the Board could attempt to foreclose a CUE challenge by declaring a CUE challenge on its own initiative, defining the issue, and thus precluding a veteran from being able to bring a subsequent CUE challenge of the underlying Board decision at a later time.The Court stated its trust that VA adjudicators would not improperly preclude a veteran from raising an issue of CUE by labeling the issues in such a manner that would prevent a later CUE challenge.

The Court reiterated that an appellant has only one opportunity to raise any allegation of CUE for each claim decided in a Board decision and any subsequent attempt will be dismissed. The Court then defined a claim as an informal or formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit, and reiterated that a CUE claim is a motion or request rather than a claim.

Decided by Judges Greene, Hagel and Schoelen.

Posted by Thomas Andrews, Esq. at 10:12 AM

[carlie]

NSA,

I don't remember which year it was made,but if I remember right

there is a PRECOPGC, that this specific court case would be in conflict

with.

I still stand by my post - if the CUE is called under a different theory

(even though they are supposed to consider all theories) another CUE

can be filed for the same issue.

From the decision you posted,

"The Court stated its trust that VA adjudicators would not improperly preclude a veteran from raising

an issue of CUE by labeling the issues in such a manner that would prevent a later CUE challenge."

This court needs to take off their blindfold !

[NSA-Saigon-ET]

NSA,

I don't remember which year it was made,but if I remember right

there is a PRECOPGC, that this specific court case would be in conflict

with.

I still stand by my post - if the CUE is called under a different theory

(even though they are supposed to consider all theories) another CUE

can be filed for the same issue.

From the decision you posted,

"The Court stated its trust that VA adjudicators would not improperly preclude a veteran from raising

an issue of CUE by labeling the issues in such a manner that would prevent a later CUE challenge."

This court needs to take off their blindfold !

Yes,

There are two court cases in conflict that they cited during this process.

I will quote it here.

"The Court had to wrestle with two competing Federal Circuit decisions. InDAV v. Gober, 234 F.3d 682 (Fed. Cir. 2000), the Federal Circuit upheld the validity of 38 CFR 20.1409© (which says once a final decision on a motion to revise is made regarding a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of CUE and subsequent CUE motions will be dismissed). Whereas in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), the Federal Circuit stated each new CUE theory is independent for res judicata purposes, so a narrow reading of what CUE theories were raised would work no disadvantage to the claimant, as any unraised theories could be raised in a new CUE action.

The Court ultimately accepted DAV as controlling because it contained a clear discussion of 38 CFR 20.1409© and the decision promoted judicial economy and finality. Thus, the Court affirmed the dismissal of Hillyard's CUE claim."

This was a three judge panel and their opinion is binding on the VA and the CAVC unless overturned by the US Supreme Court. At this time, that is the law of the land for CUE.