Cue Back To 1975

[nanaeris]

I have a congressional inquiry because the Waco Regional Office refuse to give me a answer why they used DC 5260 instead of DC5261. This has been going on for two and a half years with no movement to the BVA. This has been a long and unnecessary journey. I was going over some of the denied decision in the past and looked at my initial denial 1976. It stated I was hospititalized for myocarditis subsequent ot service but it did not state myocarditis is a presumptive illness if within the presumptive period. I got out of the service 27 November 1974 and I was hospititalize 2 September 1975 which would have been in the presumptive period. Can this be a CUE claim for the two months I was disabled? On the same claim the Rating specialist stated evidence of record is insufficient to substantiate the claim of aggravation of veteran's pre-service knee condition. I reopen my claim for knee disability in 1999 and after a two year fight and calls to Washington DC I was granted service-connection for my bilateral knee disabilities. The information in my SMR clearly stated my knees was permantantly disabled by military service. I had three MEBs which stated so. My question is this a CUE claim because the VA denied me because they did not have my service medical record.

nanaeris

[Pete53]

If you do not have an open claim you can ask for CUE, Otherwise you have to wait for answer. Have you considered a Writ of Mandamus.

[carlie]

My question is this a CUE claim because the VA denied me because they did not have my service medical record.

nanaeris

IMO - it would NOTmeet the criteria for a CUE claim.

I would look more along the lines of possible earlier effective date

due to 3.156c .

http://ecfr.gpoacces...1.60.65&idno=38

Edited to add the word NOT - sorry

[Berta]

Me too-=I see 2 CUEs here:

"The information in my SMR clearly stated my knees was permantantly disabled by military service. I had three MEBs which stated so. My question is this a CUE claim because the VA denied me because they did not have my service medical record."

This reg might be another way to go here too regarding this specific claim too as Carlie stated:

Also for the heart disability-

"It stated I was hospititalized for myocarditis subsequent ot service but it did not state myocarditis is a presumptive illness if within the presumptive period. I got out of the service 27 November 1974 and I was hospititalize 2 September 1975 which would have been in the presumptive period. Can this be a CUE claim for the two months I was disabled?"

Is this what the 1976 denial was based on? Myocarditis? as well as the knee disability?

If so I sure would go for it and file a CUE on the myocarditis decision in a heart beat as well as CUE or using the above reg or even using both on the knee disability.

This is a successful BVA CUE award for very similar circumstance as yours:

http://www.va.gov/vetapp97/files4/9733058.txt

In part:

“The veteran contends that the regional office (RO) committed

clear and unmistakable error in its March 1953 rating

determination by denying service connection for a heart

disorder. He maintains that as his heart disorder arose

within one year of his separation from service, service

connection should have been granted for this disorder.”

“ORDER

The rating decision of March 1953, in its failure to grant

service connection for a heart disorder, namely myocarditis,

was clearly and unmistakably erroneous, and service

connection for that disorder is granted.”

The above case is a good template to use along with the CUE info here.

Sounds like you have a beauty here regarding 2 CUEs in the same decision!

Edited December 30, 2011 by Berta

[Berta]

PS, you might want to support the CUE claims with that entire BVA decision as to support for how the regs should have been applied.

Although BVA decisions have no relevance as far as supporting most SC claims, the BVA case I posted is a legal decision from the BVA, and not dependent on medical evidence.

I used 4 BVA decisions , as to their legal statements as support for my CUE claims,as well as an Office of General COunsel Pres Op for them and even,with a friend of mine's vet's permission, I even used his award letter to show how VA had committed CUE in a 1998 decision I got.

[nanaeris]

IMO - it would meet the criteria for a CUE claim.

I would look more along the lines of possible earlier effective date

due to 3.156c .

http://ecfr.gpoacces...1.60.65&idno=38

Can you give me some advice on how to write this up because the DAV has been no help with my claim for a increase for my knees disability. I think this is why this has taken so long. When I was in California, the DVA did a great job, but here in Texas I have had to do everything myself. Do you think I should go to another VSO to accoumplish these two situation? Can you reccomment one.

nanaeris

[carlie]

Can you give me some advice on how to write this up because the DAV has been no help with my claim for a increase for my knees disability.

I think this is why this has taken so long. When I was in California, the DVA did a great job, but here in Texas I have had to do everything myself.

Do you think I should go to another VSO to accoumplish these two situation? Can you reccomment one.

nanaeris

nan,

I'm sorry but I had to edit my post to read :

"IMO - it would NOTmeet the criteria for a CUE claim.I would look more along the lines of possible earlier effective date due to 3.156c .

Edited to add the word NOT - sorry

Back to your question -

"My question is this a CUE claim because the VA denied me because they did not have my service medical record."

Not having the SMR's in and of itself - does not meet the criteria for cue.