Is This A Cue?

[Trooper83]

Any advise on this matter would be greatly appreciated:

I am service connected at 30% for right ankle sprain. I had a permanent profile while in service that excluded running, jumping, standing for long periods of time and any other thing that would effect my ankle. I had to attend physical therapy up until I was discharged. I was discharged in October 2003, a few months later, maybe (3-4) I filed a disability claim for my ankle. I was homeless around that time and was never notified of a C&P exam, however in my records I saw that an exam was in deed scheduled. In my claims file its noted that I was denied benefits and notified of the decision on 5-02-2004. Records indicated that I was denied because VA did not receive evidence of complaints of treatment for this condition since leaving active duty. My question is, since I had just left the service and had stacks of medical evidence for my condition, is it a CUE because VA did not rate the evidence of record? ?????? 1) When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and the exam was scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record.

[sharon]

You still have to show that you have the condition. The VA can deny based on you not showing up for an exam.

[jbasser]

You don't have a cue.

Missing a C and P exam allows for a shotgun denial as the VA had no proof of a chronic disability wiothout you attending the exam.

J

[rdawg]

did you submit evidence of a current condition when you first applied? if not, then the va scheduled a c&p to see if you still had this condition. when you didn't show they did rate your claim based on the evidence of record. Since there was no evidence of a current condition you were denied.

you answered your own question in your post.

[broncovet]

While I dont think this is a CUE, there very well could be other Cue theories in your claim that are valid.

However, you may not need a CUE to win an EED, if that is what you are trying to do.

38CFR 3.156 talks about "new service records". If service records are lost then found, you can win an EED on this, and wont have to meet the CUE standard.

A detaliled discussion on 3.156C and other ways of earning an EED is here:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf