Reopened Old Claim 13 Years Old! Need Advice?

[Done wit this]

Back 13 years ago My claim was denied because of lack of medical records from Time searved in Desert Storm.They said that they did not exsist. Yea right! I have found these medical records from time questioned and I have Sent these copys to my Regional VA center.I have also sent proof from Docters ,My Union BA. and others of the struggle I have had to stay employed cause of the joint damage I have had since Desert Storm. Both shoulders have been operated on both thumbs are deformed at joints .and now my right hip is going.I am very gaulthy type of Guy and didn,t want help from any one to get my money to live, but now I am pretty much unable to work without great pain.and I have to accept this fact . This is HARD.

I just received an appointment to see a VA REP at local VA Hospital to dicuss correspondence between the regional VA and the Local REP. Whats going on here?

Should I Do The CUE thing ,The reason my Claim was origonally turned down was lack of medical files from The time I claimed it happened and my medical file's from this time clearly state what happened how it happened and that I was seen 3 times for this while on active duty in the Gulf.and put in a slings givin meds and Told to stay at company area and not work for weeks at a time.The medical files tell the story in black and white. I even had a operation within 4 months of returning home to correct what happened While on active Duty.I beleave all I really needed was the copy of the Lost medical files for a Que . Am I correct?

Edited June 30, 2006 by macool

[mobie16r]

Back 13 years ago My claim was denied because of lack of medical records from Time searved in Desert Storm.They said that they did not exsist. Yea right! I have found these medical records from time questioned and I have Sent these copys to my Regional VA center.I have also sent proof from Docters ,My Union BA. and others of the struggle I have had to stay employed cause of the joint damage I have had since Desert Storm. Both shoulders have been operated on both thumbs are deformed at joints .and now my right hip is going.I am very gaulthy type of Guy and didn,t want help from any one to get my money to live, but now I am pretty much unable to work without great pain.and I have to accept this fact . This is HARD.

I just received an appointment to see a VA REP at local VA Hospital to dicuss correspondence between the regional VA and the Local REP. Whats going on here?

Should I Do The CUE thing ,The reason my Claim was origonally turned down was lack of medical files from The time I claimed it happened and my medical file's from this time clearly state what happened how it happened and that I was seen 3 times for this while on active duty in the Gulf.and put in a slings givin meds and Told to stay at company area and not work for weeks at a time.The medical files tell the story in black and white. I even had a operation within 4 months of returning home to correct what happened While on active Duty.I beleave all I really needed was the copy of the Lost medical files for a Que . Am I correct?

[free_spirit_etc]

So how did your meeting go? I sure am NO expert on CUE - but from the CUE research I have been doing - a CUE might look good.

From what I have read - a CUE can be decided based on legal errors or errors of facts.

If your case would show that a the facts, as they were known at the time, were not considered - and those facts that were not considered would have manifestly changed the outcome of the decision - then a decision can be reversed.

What is especially important to me is that these are service medical records. Even if those were not available to the RO - they SHOULD have been - as they are service medical records.

So it is not like you are coming back with new and material evidence (for a NEW claim) - you are coming back with evidence that WAS considered "avalibale" at that time (though it was not available.

In other words - if THOSE facts - which SHOULD have been considered because they are part of your service records - were NOT considered (because they couldn't find them) and those facts can win your case -- then the same decision SHOULD have been made 13 years ago (thus the CUE)

I don't remember the exact case - but there was one in the courts in which the courts specifically decided a CUE for a veteran for DUTY TO ASSIST. Though duty to assist is not USUALLY a basis of CUE - they DID grant it in that case because the RO tried ONE TIME to obtain service medical records - did not obtain them - and did not inform the veteran that they did not have them - or seek to obtain them again.

The court granted CUE for failure d duty to assist in THAT specific case.

Other veterans have TRIED to claim CUE for failure in duty to assist - citing that case, but the courts have ruled that the CUE for failure in duty to assist was very limited to the specific case of the VA not seeking the medical records beyond the first attempt and not informing the veteran they were not obtained until they had already decided his case. The courts did not broaden this to other duty to assist issues.

But based on wat happened in your case - it could be close enough to the case in which the CUE was granted that you might be able to make the connection.

I can't find the exact case I was talking about - but this is interesting: It looks like they didn't decided it was a CUE because in failing to obtain the requested SMRs they determined the decision was not final (and a decision has to be final to get a CUE)

But..hey...getting a decision that the you can't get a CUE for failure of duty to assist - because the decision wasn't final because of failure of duty to assist - would be about the same end result, wouldn't it?

www.ll.georgetown.edu/federal/judicial/fed/opinions/98opinions/98-7046.pdf

"A breach of the duty to assist in which the VA failed to obtain

pertinent SMRs specifically requested by the claimant and failed to provide the claimant with

notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates

the finality of an RO decision for purposes of direct appeal. Whether this lack of notice is the

product of inadvertence or design, it places the interests of the veteran, in this uniquely

pro-claimant adjudicatory system, in considerable jeopardy in that it effectively extinguishes the

claimant's right to judicial review."

"Where so much of the evidence in VA adjudications is circumstantial at best, notice explaining the

failure to obtain pertinent and specifically requested SMRs is critical to ensuring a proper award

for benefits and an effective right to judicial review. If a veteran, who is later able to obtain

counsel or serendipitously discovers a breach of the duty to assist, has no remedy, then the duty to

assist becomes a hollow obligation. In such a case, the veteran is trapped in an impossible

situation, a Catch-22 in which judicial review is not available because the VA refuses to obtain the

pertinent SMRs specifically requested by the claimant, and the Court of Appeals for Veterans

Claims refuses to require it because the claimant cannot prove that the missing SMRs would

manifestly change the outcome of his or her case. We therefore hold that where there is a breach

of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the

claimant and failed to provide the claimant with notice explaining the deficiency, the claim does

not become final for purposes of appeal."

[free_spirit_etc]

UPDATE ON THIS DOESN'T LOOK SO GOOD

www.pva.org/prof/pdf/Soar_vol7no1.pdf

Federal Circuit’s Decision in Cook Overrules Hayre

--------------------------------------------------------------------------------

Page 2

Other Cases at theFederal CircuitFederal Circuit Applies CookIn Tetro v. Principi, __ F.3d __, No.01-7031 (Fed. Cir. Jan. 3, 2003), theFederal Circuit applied Cook, to affirmthe CAVC. Mr. Tetro alleged that VAcommitted a grave procedural error inadjudicating his claim for an earliereffective date for the award of nonser-vice-connected disability pension. TheFederal Circuit concluded that because“a procedural error, even if it did occur,does not vitiate the finality” of a chal-lenged VA decision, it would affirm theCAVC. The Federal Circuit observed that Mr.Tetro did not assert either of the twostatutory exceptions to the rule of VAfinality. The two exceptions are (1) thatthe Secretary must reopen a claim “fnew and material evidence [regardingthe claim] is presented or secured,” 38U.S.C. § 5108, and (2) a decision “issubject to revision [for] clear and unmis-takable error.” 38 U.S.C. § 5109A. Mr.Tetro sought to “reopen the March 1990decision by the Board on the theory thathe suffered a ‘grave procedural error’under Hayre.” The Federal Circuit reject-ed this argument, stating that having“overruled Hayre, even a proven allega-tion of ‘grave procedural error’ based ona VA breach of the duty to assist is insuf-ficient for circumventing the rule offinality.” In conclusion, the Federal Circuitobserved that: “Mr. Tetro still has avail-able the two statutory exceptions to final-ity, should his case warrant reopening.

In Cook v. Principi, 318 F.3d 1334, 1338-41 (Fed. Cir. 2002), the Federal Circuit, sit-ting en banc, overruled the “grave proceduralerror” doctrine recognized in Hayre v. West,188 F.3d 1327 (Fed. Cir. 1999). The FederalCircuit held that a breach of the duty to assistdoes not vitiate the finality of a VA decision. The Federal Circuit also reaffirmed itsholdings in Hayre and Roberson v. Principi,251 F.3d 1378 (Fed. Cir. 2001), that a breachof the duty to assist cannot constitute clearand unmistakable error (CUE). In light ofCook, the courts will not reverse or remandan appeal to the agency under Hayre. In Hayre, a panel of the Federal Circuitheld that VA’s failure to obtain service med-ical records, coupled with VA’s failure to pro-vide the veteran notice, could constitute agrave procedural error rendering a priordenial non-final and potentially permitting anearlier effective date for benefits.Mr. Cook, the veteran, had sought an ear-lier effective date for service-connected benefits. He asserted that a VA examinationconducted in 1952 was inadequate andargued, inter alia, that the subsequent ratingdecision should be considered non-finalunder Hayre. On appeal, the CAVC held thatthe failure to provide an adequate medicalexamination did not rise to the level of a“grave procedural error.” The Federal Circuit initially affirmed theCAVC’s decision and distinguished the Hayre holding. Mr. Cook sought reconsideration bythe Federal Circuit. The Court granted themotion and on reconsideration, the en bancFederal Circuit overruled Hayre to the extentthat it held that a “grave procedural error”could operate to make an agency decision“non-final.” The Federal Circuit found thatCongress had—by statute—only providedtwo mechanisms for a veteran to overcomethe finality of a prior decision: (1) new andmaterial evidence under 38 U.S.C.A § 5108.(West 2002); and, (2) clear and unmistakableerror under 38 U.S.C.A. §§ 5109A, 7111(West 2002). “Grave procedural error” didnot fit either category.Additionally, as noted, the Federal Circuitaffirmed that part of Hayre that held a failurein VA’s duty to assist, such as the failure toseek records or provide an examination, cannot constitute a clear and unmistakableerror. These types of agency errors, accordingto the Federal Circuit, can not rise to the levelof clear and unmistakable error because theyare not outcome determinative errors.Judges Dyk and Linn concurred. Thesejudges emphasized that the Federal Circuithad not decided that all breaches of theagency’s duty to assist are inconsequential.Chief Judge Mayer and Judges Gajarsaand Newman dissented. These judges argued,in their dissent, that a breach of the duty toassist by VA should operate to render a deci-sion non-final.

[Done wit this]

I have seen a State Veteran Counselor, He is the best in my area here in NY. We have got this claim filed and it is at the Rater now. The Rep tells it like this ,1st step get the claim- service connected- granted, and with the SMRs it will be granted. Then get my enemployability filed. Then if the VARO does not include the back payments in there decision ,Sometimes They Do,- File the CUE Claim. He The VA rep I have says its a CUE . He is supposedly the best around. Berta Knows Him Well. She has him for a Vet Rep now and is very happy about it. Now the Hard thing for me to do sit and wait.

My Hip is bad enough now that I cannot think about working.I went to a motorcycle hill climb today and it -My hip hurt standing up for more then 20 minutes at one time . This stinks and is very depressing I sure wish that the VA would have found the evidence back when I had first filed and I would have had the chance to get out of the construction trade before I ruined my left shoulder and now my hip. I would have been alot better off. Now I get to sit here at home and Wait for the 1st of what I think will be A three part journey with the VA process. And then after all this is done see if I can get the Hip connected also.The VAMC here in Bath NY has tryed a few things to correct this but it did not work . I guess with my rotten luck I'll end up with Surgery on that too. Why couldn't the VA find the records when I first filed it would have saved me a world of Pain and suffering. Now I sit and wait and feel Useless and Screwed over by the VA system.and wait for the VA to finish my Claim .and take there time doing it. This Site is a good place to vent and talk with others who understand and got screwed also. Today I hurt and could not do something I wanted because of a past VA decision to deny my claim when it was the wrong decision cause they left out the SMRs. I'll pay for the VA's mistake the rest of my life.

Macool :o

[Josephine]

UPDATE ON THIS DOESN'T LOOK SO GOOD

www.pva.org/prof/pdf/Soar_vol7no1.pdf

Federal Circuit’s Decision in Cook Overrules Hayre

--------------------------------------------------------------------------------

Page 2

Other Cases at theFederal CircuitFederal Circuit Applies CookIn Tetro v. Principi, __ F.3d __, No.01-7031 (Fed. Cir. Jan. 3, 2003), theFederal Circuit applied Cook, to affirmthe CAVC. Mr. Tetro alleged that VAcommitted a grave procedural error inadjudicating his claim for an earliereffective date for the award of nonser-vice-connected disability pension. TheFederal Circuit concluded that because“a procedural error, even if it did occur,does not vitiate the finality” of a chal-lenged VA decision, it would affirm theCAVC. The Federal Circuit observed that Mr.Tetro did not assert either of the twostatutory exceptions to the rule of VAfinality. The two exceptions are (1) thatthe Secretary must reopen a claim “fnew and material evidence [regardingthe claim] is presented or secured,” 38U.S.C. § 5108, and (2) a decision “issubject to revision [for] clear and unmis-takable error.” 38 U.S.C. § 5109A. Mr.Tetro sought to “reopen the March 1990decision by the Board on the theory thathe suffered a ‘grave procedural error’under Hayre.” The Federal Circuit reject-ed this argument, stating that having“overruled Hayre, even a proven allega-tion of ‘grave procedural error’ based ona VA breach of the duty to assist is insuf-ficient for circumventing the rule offinality.” In conclusion, the Federal Circuitobserved that: “Mr. Tetro still has avail-able the two statutory exceptions to final-ity, should his case warrant reopening.

In Cook v. Principi, 318 F.3d 1334, 1338-41 (Fed. Cir. 2002), the Federal Circuit, sit-ting en banc, overruled the “grave proceduralerror” doctrine recognized in Hayre v. West,188 F.3d 1327 (Fed. Cir. 1999). The FederalCircuit held that a breach of the duty to assistdoes not vitiate the finality of a VA decision. The Federal Circuit also reaffirmed itsholdings in Hayre and Roberson v. Principi,251 F.3d 1378 (Fed. Cir. 2001), that a breachof the duty to assist cannot constitute clearand unmistakable error (CUE). In light ofCook, the courts will not reverse or remandan appeal to the agency under Hayre. In Hayre, a panel of the Federal Circuitheld that VA’s failure to obtain service med-ical records, coupled with VA’s failure to pro-vide the veteran notice, could constitute agrave procedural error rendering a priordenial non-final and potentially permitting anearlier effective date for benefits.Mr. Cook, the veteran, had sought an ear-lier effective date for service-connected benefits. He asserted that a VA examinationconducted in 1952 was inadequate andargued, inter alia, that the subsequent ratingdecision should be considered non-finalunder Hayre. On appeal, the CAVC held thatthe failure to provide an adequate medicalexamination did not rise to the level of a“grave procedural error.” The Federal Circuit initially affirmed theCAVC’s decision and distinguished the Hayre holding. Mr. Cook sought reconsideration bythe Federal Circuit. The Court granted themotion and on reconsideration, the en bancFederal Circuit overruled Hayre to the extentthat it held that a “grave procedural error”could operate to make an agency decision“non-final.” The Federal Circuit found thatCongress had—by statute—only providedtwo mechanisms for a veteran to overcomethe finality of a prior decision: (1) new andmaterial evidence under 38 U.S.C.A § 5108.(West 2002); and, (2) clear and unmistakableerror under 38 U.S.C.A. §§ 5109A, 7111(West 2002). “Grave procedural error” didnot fit either category.Additionally, as noted, the Federal Circuitaffirmed that part of Hayre that held a failurein VA’s duty to assist, such as the failure toseek records or provide an examination, cannot constitute a clear and unmistakableerror. These types of agency errors, accordingto the Federal Circuit, can not rise to the levelof clear and unmistakable error because theyare not outcome determinative errors.Judges Dyk and Linn concurred. Thesejudges emphasized that the Federal Circuithad not decided that all breaches of theagency’s duty to assist are inconsequential.Chief Judge Mayer and Judges Gajarsaand Newman dissented. These judges argued,in their dissent, that a breach of the duty toassist by VA should operate to render a deci-sion non-final.

What does constitiute a grave procedural error ? If the VA does not secure the needed medical records in their care for you to have a case and prove your claim? This happened to me and I am confused. If the Va. has never bothered, in my case to secure any of my psychiatric records with each filing date and denied me without even an examination and then 42 years later, I secure them myself from the archives and now the doctors, all but one, states that my anxiety disorder began in service. Why aren't they responsible for their negligence.

I noticed that his case was just like me and now it is being said. No back pay and maybe no claim. Right? Is this what you are saying?

Thanks,

Josephine