Thinking Of Filing A Cue To 1971

[steve&pat]

I came across this first rating decision of 2-2-71 that has this printed note on the top--

(for the veterans vasomotor rhinitis,because it cannot be distinguished from his sinusitis which was incurred in service.S/C for both ---then goes on to say service connection is denied for the ulcer of the nasal septum , because it was first noted after service.

10/1/ 70 I got out of service I believe the C/P was 1/5/71

I was only recieving 10% at that time so this could add another 10 % or more.

This wasnt even 4 months after discharge.Didnt go to 100% till 1994

A lot of this first rating was screwed up. THOUGHTS

thanks STEVE

[jbasser]

Anyway you look at it a misapplication of the rating schedule is in legal terms an error. If the evidence warrants a particular rating and a different rating that causes the Veteran Harm ( Costs the Vet retro) is a CUE.

Check into it but do not take this on by yourself. Ask Bergmann and Moore to look at it before you send it. They likely will not represent you until you have a denial but ask them to do it.

In addition, Hadit is a site based on Veterans helping Veterans. Over the years we have had several VA Employees and VSO's join to offer their advice on these issues. Many are very dear to us as they have a very long standing relationship with HADIT. Others came on and were complete literary smart asses and eventually ties were severed. If a person doesn't want to see replies from a certain individual, hit the ignore button and if a post gets out of the realm of Hadit's mission, Just report it to a moderator. We are trained to handle these situations.

Do not let another poster get under your skin. We don't need that here and we definatly dont need anyone causing discontent and distorting our mission.

The content of this topic will be under discussion with the Mods and Admin team.

Basser

[Interested]

This is an opinion, correct?

http://answers.yahoo...13085329AATcows

Interested

I don't think your comments are helpful.

[Philip Rogers]

Chuck75 - I believe that "deemed denied" rule doesn't pertain to claims rated circa pre that decision. jmo I would probably pursue the CUE claim.

pr

A possible problem is that the VA may still be able to try and hide hide behind a "deemed denied" "gotcha" that can occur when a denial or award omits parts of a claim.

[Interested]

I will say it again ... I don't believe you have a Clear and Unmistakable Error (CUE) because:

S/C for both . So, you are telling me that you have in point of fact been service connected for both sinusitis and vasomotor rhinitis since this Rating Decision in 1971... is that correct?

I asked you earlier what was the percentage of obstruction noted in the C&P of 1/5/71 but you did not provide it. So, what was the amount of nasal obstruction from polyps at that time? Likely, there were no polyps or obstruction noted ... is that correct?

So, both sinusitis and vasomotor rhinitis were service connected and incorporated into one issue because the rhinitis was not separately ratable. However, that does not mean that rhinitis wasn't service connected (which appears to be the case from your statements), and that it couldn't have been broken out into a separate issue if or when it became separately ratable.

Apparently, the nasal septal ulcer was addressed and denied. You had one year to appeal that decision ... did you?

And, when you did develop nasal polyps sufficient for the 10% you seek, did you file a claim for increase?

I came across this first rating decision of 2-2-71 that has this printed note on the top--

(for the veterans vasomotor rhinitis,because it cannot be distinguished from his sinusitis which was incurred in service.S/C for both ---then goes on to say service connection is denied for the ulcer of the nasal septum , because it was first noted after service.

10/1/ 70 I got out of service I believe the C/P was 1/5/71

I was only recieving 10% at that time so this could add another 10 % or more.

This wasnt even 4 months after discharge.Didnt go to 100% till 1994

A lot of this first rating was screwed up. THOUGHTS

thanks STEVE

[steve&pat]

If you will note this was the FIRST RATING DECISION WITHIN 3 MONTHS OF GETTING OUT OF THE NAVY.C&P and RATING.

POINT OF FACT__S/C for both .

( So, you are telling me that you have in point of fact been service connected for both sinusitis and vasomotor rhinitis since this Rating Decision in 1971... is that correct?)

THE RATING FOR sinusitis and vasomotor rhinitis ARE SEPERATE ratings .

And the ulcer is a leftover from continued polyp growth and ulceration starting in GUAM in 1967 & continuing there on.

And as expected the VA did not offer the complete SMRs from service .I think I got them all now last year from NARA .

6513 maxillary sinusitis

6501 vasomotor rhinitis

STEVE

[broncovet]

Interested...

There are many "legal theories" to which a Veteran can allege CUE. One example is that the Veteran be given notice of his appeal rights. Under some circumstances, if the Veteran is not given notice of his appeal rights, then that is CUE.

Since it is highly unlikely that you even know whether or not this Veteran was given notice of his appeal rights, your opinion that there was no CUE is "mere speculation". Of course there are other possible "CUE" errors in this Veterans file. Sometimes the "Cue" is what the Veteran thought it may be, while others the "Cue" error(s) was uncovered by an attorney for the Veteran which resulted in retro for the Veteran, after much research.

I prefer that we "err in favor of the Veteran". That would mean that SEVERAL experienced professionals look over the Veterans claim to see if there was a possibility of CUE. Only after several law firms have reviewed the complete file, would I recommend any Veteran abandon his possibility for CUE retro of this magnitude.

Many a Veteran has read over his file dozens of times only to find someone else locate that "Cue error". Cue is often not what the layperson thinks it is. If you dont know exactly what a "Cue" is, you could be looking at one and not even know it.

Steve and Pat: Take your C file to an experienced VA lawyer and ask their opinion. If they say no, then take it to another law firm. Only after you have had at least 3 law firms say you have no case should you consider abandoning your claim. JMHO. Many a Vet has won their claim that their VSO, or someone else said it was useless. I am in that category.