tdiu Please Advise On Possible Cue

[Mike409]

Hello fellow Vets and friends of HADIT

Im considering filing a CUE claim and would like opinions on facts related cause there are some very knowlegeable vets here!

1. 1978 in service surgery performed on hand. Diagnosis Caverous Hemangioma, no medical history prior to service.

2. inadequate procedure worsen condition and create residuals SMR documented including nerve damage, marked range of motion deficit, wrist and fingers

3. permanent profile issued limited duty until discharge. 1979 honorable discharge.

4. claim filed within 1 year and denied. NOD but no appeal. no representation

5. SOC issued states VA neurological examination was negative, "reasons for decision" claims numerous conflicting statements regarding date of origin and not aggravated by any incident in service also surgery was remedial for a condition existing prior to induction.

6. 2006 TDIU awarded after condition worsened and unable to work for 2 years prior based on exact same condition.

opinions on possible CUE? if possible, where do i start? What am I missing here?

[Mike409]

Berta

John999 seems to be saying the 1980 rating decsion says i was SC and NSC? im confused. maybe you can shed some light. Also the letter informing me i was denied has no letterhead, is that reasonable?

IMO VA basically did whatever they wanted to me then cause they could.

[broncovet]

I agree with Carlie EXCEPT you should remember the VA may have made legal errors you did not notice. Altho a VCAA error does not constitute CUE there are many other potential legal errorsthat manifestly changed the outcome possible.

Remember that to be CUE the legal error, such as the VA failure to follow its own regulations, has to be outcome determinative. It is not CUE for the VA to do a "harmless error", but the Veteran needs to demonstrate that this error "manifestly affected the outcome.".

Importantly, you do not want to "CUE" when it bears the Veteran an unnecessarily high standard of review. That is, if you can win an EED with the use of 3.156c "lost then found service medical records" then you need not meet the "cue" standard of review. Dont make it harder for yourself, it is hard enough at the VA already, so dont give yourself a nearly impossible standard to meet when you may be able to jump into 3.156c much easier.

There are at least 3 other methods to avoid the higher review standard of CUE to accomplish your desired result:

1. Appeal the decision on time.

2. Pending claim. If the VA fails to adjuticate, then you can win an eed on that basis without CUE standard of review.

3. 3.404 as in this appeal: http://www.va.gov/vetapp03/Files/0307002.txt

[carlie]

Carlie

What the record shows is that the condition was manifested, diagnosed and (mis) treated in service. And there was a denial. Then, many years later same condition was service connected because of the same.

In the "original" denial I read, the VA admitted your condition was incurred and treated and surgery was provided

while you were on on active duty. You were discharged from the military and submitted a claim for SC.

The VA provided an examination. The medical evidence of record from this examination supports the above,

states there are no new growths, your scars are well healed, neurological exam on the claimed area is normal.

This exam does not provide nor support a diagnosis of there being any current disability at the time of the exam.

As I posted earlier,

"The simple facts that a something happened on AD (and it's in the SMR's) you filed a VA claim on it,

the claim was denied . . . . . years later the VA grants SC for the same condition . . .

does not make for a CUE.

In reply to something being "(mis) treated in service" - VA has no responsibility for that.

This "(mis) treated in service" is strictly between you and DOD and I believe the Ferris (sp)Doctrine

covers that.

Your VARO/VAMC and DOD are separate agencies.

all the treatment records were available at the time of the decision.

The SMR's of record were acknowledged in the original denial.

the SOC was issued soon after rating decision.

All evidence was available at time of original decision

except obvious new exams that showed same condtion worsened to the point of being unable to work.

This evidence is not applicable to use in submitting a claim for CUE on the prior decision !

are you saying it was ok not to SC at that time and SC same condition many years later because condition worsened?

YES - I am stating that with the evidence of record you posted and in reading the 1980 denial, I do not

see ANY Law or Reg that was misapplied or broken.

Your examination that was provided for the original claim shows no active condition - no residual effects.

I believe it even went on to consider the BOD for aggravation of a possible pre-existing condition

and found that there if there WERE to have been any aggravation - it was not beyond any normal progression.

I do not think your getting the point that in your VA examination, scheduled for your original claim, the

examiner states the condition you were treated for in service - is now normal - at the time of

THAT examination.

This exam and your SMR's is the evidence the denial was based on.

I see no CUE.

BTW - your concern on your denial notification from the 1980 decision,that was not on letterhead,

is nothing to be concerned with. That was SOP at the time, most of us with claims actions at that time

have the same thing.

Also, VCAA was not even around in 1980 and does not apply to submissions of CUE.

JMHO - carlie

[broncovet]

First, this is complicated and you should probably take your whole file to a NVLSP or NOVA attorney and ask him or her these questions. This being said, here is my 2 cents with my responses in red:

1. 1978 in service surgery performed on hand. Diagnosis Caverous Hemangioma, no medical history prior to service. Ok

2. inadequate procedure worsen condition and create residuals SMR documented including nerve damage, marked range of motion deficit, wrist and fingers This sounds like an 1151 claim, not a CUE.

3. permanent profile issued limited duty until discharge. 1979 honorable discharge. Good.

4. claim filed within 1 year and denied. NOD but no appeal. no representation. I think you mean there were multiple decisions, and at least one NOD was not responded to by the RO, right? You see, the SOC is the appropriate RO response to your NOD (unless they award benefits). The appeal "stops" with the SOC UNLESS the Veteran perfects his appeal and files an I9 within 60 days. Did you file an I 9 within 60 days of the SOC? If you did not, this is going to hurt you. However, if you are saying that there were multiple decisions and the VA never responded with a SOC to at least one NOD, this is serious. Do you have a copy of this NOD that the Va did not respond to? (Especially, do you have a copy of the NOD date stamped by the RO, acknowledging reciept of the NOD. You could get this if you have a copy of your c file. If you dont have a copy of your c file, get one or you are shooting in the dark)

5. SOC issued states VA neurological examination was negative, "reasons for decision" claims numerous conflicting statements regarding date of origin and not aggravated by any incident in service also surgery was remedial for a condition existing prior to induction. Ok. What "date conflicts" do you mean? You are entitled to a "presumption of soundness". That is, you are considered in good health except as noted on entrance physical before service. The VA can not say this existed before service UNLESS its noted on your pre exam physical, or the VA can "rebut" the presumption of soundness, such as if you admit to your doc that you had this malady before service.

6. 2006 TDIU awarded after condition worsened and unable to work for 2 years prior based on exact same condition. It sounds like you are seeking an EED, not necessarily by CUE. Did you file a nod disputing the effective date within a year? If so, you dont need to meet the CUE standard of review..you can argue for an earlier effective date. There are several other ways for winning an EED that do not involve CUE, and you should exhaust all of them before you allege CUE, as that is the hardest to win. In other words, if your car is overheating try replacing a 10 dollar thermostat before you rebuild the raidiator and engine, which is much more difficult and expensive.

[broncovet]

I will add the VA can, at their discretion, combine multiple appeals. If you had a decision in 2002, another in 2005 and another in 2009, they could combine all these and have a BVA judge address them all in one BVA decision. This is not CUE, the VA has a right to do this if they so choose.

However, without viewing your entire file, RO decisions, SMR's, C and P exams, etc, no one can say for sure if the VA made legal errors or not. You posted only a small part of the puzzle and we are left to guess or rely on your interpretation for the rest. No offense meant, but sometimes you could have a CUE that you did not know about..sometimes far different from your original "cue" theory.

Before you get out your CUE stick, go to this post and see if you can win an EED by other means, first, tho.

http://www.purplehea...ate ErrorsL.pdf

or, for discussion:

[john999]

What seems like the obvious CUE may not be the actual CUE. This is why when you have what you think is a CUE with lots of retro it is worth getting a lawyer. I thought I had a CUE because the VA excluded evidence from my original claim. I do but my original wording would have resulted in dismissal of my claim. Time is the real enemy in these claims. Get it right before you go to court of vet appeals.