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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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jcntnc

CUE From Hell

Question

I'm the soldier that had the "CUE FROM HELL".

IIII

T.he V,: has conc~ded tha~ Mr.J had a valid diagnosis of posttraumatic stress disorder (PTSD) at the time

! his claim was decided on July 27, 1984 (see Statement of the Case, dated 20 I0, pages 31-32).

That diagnosis, rendered by Dr. D, Chief of Psychology Service, dated May 29, 1984, was clearly based

on the veteran's traumatic experiences during the Vietnam War as no non-military sources of trauma were

cited by the examiner in his report. The only question remaining, therefore, is whether or not the VA

possessed at the time of the 1984 decision sufficient evidence of a verifiable stressor.

Once again the VA has denied entitlement to an effective date for service connection for posttraumatic stress

disorder (PTSD) earlier than December 16,2005 as indicated by the Statement of the Case dated October 21,

2010, The veteran respectfully requests that this matter be appealed to the Board of Veterans' Appeals.

11. SIGNATURE OF PERSON MAKING THIS APPEAL '12. DATE 113. SIGNATURE OF APPOINTED REPRESENTATIVE, IF ANY

(A4!vI-Dl):,YYYYj (NO[re ulred tfsigned by appellant. See paragraph 6 ofthe

. uctions.]

14. DATE

(J\;fMD1YYYY)j

'~/f (?tIol

(Continue on the hack, or attach sheets of paper, U).'ou need tnore space.)

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CONTINUATION SHEET FOR ITEM 10

The veteran's 1983 Statement in Support of Claim clearly indicates one of his major stressors as being his

participation in graves registration while assigned to the 19th Support and Service Company at Qui Nhon.

This stressor information was repeated at the time of his C&P examination and was very clearly annotated in

Dr. D..... the time of the 1984 Decision the VA possessed extracts from an Operational

Report for the US Army Support Command - Qui Nhon, the higher headquarters to the veteran's unit, for

the period ending 31 July 1966, which indicated the total number of remains processed by the graves

registration unit. It is reasonable to conclude that upon receipt of this information a fair application of the

reasonable doubt doctrine (38 CFR 3.102 1984) would have led to the VA confirming the veteran's stressor

related to his participation in graves registration. Inexplicably, the 1984 Decision completely ignored this

critical evidence. When discussing stressors it only noted that the VA was unable to verify the death of a

serviceman named "Swisher." There was no mention of graves registration as a stressor nor was there any

discussion of the aforementioned report. As a result, the decision of the rater that "the evidence available is

held insufficient to establish any particular stressor or life-threatening episode to which the claimant's

current symptoms may be attributed" was clearly and unmistakably in error.

When service-connection for PTSD was eventually granted by the October 20, 2008 Rating Decision, the

veteran's stressor was confirmed based upon basically the same evidence that was available to the VA in

1984. The only new stressor information listed in that decision was an Operational Report for the Quarter

ending April 30, }967 which essentially duplicated the information available in the earlier report. It is

therefore reasonable to conclude that no significant evidence existed in 2008 that did not exist when the

claim was denied in J 984. A finding of entitlement to an effective date prior to December 16, 2005 for the

granting of service connection for PTSD on the basis of clear and unmistakable error is therefore warranted.

The appellant hereby takes exception to and preserves for appeal all errors the VA Regional Office may

have made or the Board may hereafter make in deciding this appeal. This includes errors in failing to

adjudicate issues or claims reasonably raised by the record, even though not specifically mentioned by the

appellant. This also includes all legal errors, errors in fact-finding, failure to follow Manual M21- L failure

to discharge the duty to assist, and any other due process errors,

Under the Veterans Claims Assistance Act of 2000, the VA must advise the appellant of how to substantiate

his claim as well the existence of negative evidence and how to counter this evidence.

(Attach

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5 answers to this question

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Was the PTSD coded as 9411 NSC and then given a rating in the older decision? ( which would have manifestly altered the outcome but for CUE?)

Other then that question I think this excellent!.

I am glad to see you used this:

"The appellant hereby takes exception to and preserves for appeal all errors the VA Regional Office may

have made or the Board may hereafter make in deciding this appeal. This includes errors in failing to

adjudicate issues or claims reasonably raised by the record, even though not specifically mentioned by the

appellant. This also includes all legal errors, errors in fact-finding, failure to follow Manual M21- L failure

to discharge the duty to assist, and any other due process errors",

and if I can find my older post on this (from NVLSP VBM) I will bump it up here.

I stated this recommended statement on my 1-9 for my AO death claim (awarded last year by BVA) as well as on my 1-9 for my pending CUE claim.

In the case of my AO death claim the Buffalo VARO violated the VCAA but BVA said the evidence overcame the violation.

(I technically wrote my own VCAA letter and fulfilled it since Buffalo failed to do that)

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VCAA does not apply in CUE claims as far as I know. My lawyer tried citing the fact that the VA never gave me appeal rights in a 1973 decision and the BVA came back with answer that this was part of VCAA and did not apply to CUE. When you file a CUE the VA does not even have to send you a VCAA letter. Did you hire a lawyer?

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John-=if you mean regarding what I posted-

You are right VCAA has nothing to do with CUE claims.

I had a VCAA violation on my direct SC death claim.

This vet should consider attaining a lawyer for his CUE claim.

My CUEs were filed in July 2004. They did not consider a single piece of my legal evidence and gave me some bizarre statements to deny the claims.

I was then set to be transferred to the BVA for these CUEs and suddenly they went instead to the Nehmer coordinator in Phila.

They regarded in part a total lack of any codes and rating for my husbands well established IHD that caused his death.

The decision I cued (award under 1151) states quite clearly that VA misdiagnosed my husbands IHD and CVAs and caused his death yet they failed to code and rate the fatal IHD and the CVA rating was wrong.

VA must code and rate every disability they are aware of.Although there was ample evidence in the med recs of my husband's IHD, they still failed to code and rate it at all.The CVA and/or the IHD alone would warrant SMC consideration.1151 disabilities are not except from basic VA case law when it comes to ratings nor are they excempt from SMC consideration.

I do believe a proper decision on my pending AO claim will render these CUE claims moot.If not I will continue to pursue them.

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Berta

I was referring to what the veteran had posted about VCAA regarding his CUE. Yes, I think he should hire a lawyer.

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I try to bring up this injustice as often as possible to Veterans as its victims are many. The problem is when the VA fails to adjuticate an issue, the burden is shifted to the Veteran to appeal. If he does not know he has to appeal, that is too bad and he loses out. While there is a recent case describing that the Veteran must know that his claim was adjuticated to be deemed denied, it is rather vague.

The courts call it a "deemed denial", but it really amounts to a "secret denial", with Veterans claims denied without their knowledge. I think it is a denial of due process. You see Veterans benefits are a "right" to which a denial of this right is a denial of due process guaranteed by the Constitution. (Life, Liberty or the Persuit of Happiness). The courts have repeatedly ruled the government can not seize property owned by its citizens without due process. A deemed denial amounts to a seizure of private property by the government without due process, since the Veterans rights to his property (Veterans disability compensation) has been denied without due process. The Veteran asks for his benefits and is entilted to a written decision, along with a proper "reasons and bases" for denial. Not so in a "deemed denial". The Veteran gets no decision, and no reasons and bases for denial. While he can appeal a deemed denial, he is at a distinct disadvantage, because many appeals are successful when the Veteran can refute the VA's "reasons and bases" for denial. With no Reasons and bases, he can not properly appeal his denial. Instead, he is forced to go a much more difficult route filing a CUE, with a much higher standard of review than what he normally would have had he been given a reasons and bases for denial.

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