Would This Be A Cue?

[justrluk]

If I've had this answered before, please forgive me. If my STRs are missing and the VA made a decision based on their assumption that a condition was pre-existing when it was not (they mention in the decision the lack of STRs) that would have changed the rating at the time, would this be a CUE?

EDIT: I may have answered my own question. After scouring the BVA site, it appears as though most cases are remanded to the RO to have them look (again) for the missing records (mine has done this and stated so in the SOC). I love this part:

"Regrettably, the Board must remand the claims...."

If the continued search for the records would be considered futile, they request another exam (why, I have no idea - if the condition did not pre-exist service) and re-evaluate the claim. Seems like an infinite loop to me...adding years to the process.

What I don't understand: how could an examiner determine if a condition did or did not exist prior to service from 30 years ago? I would think that the RO should see this simple fact - the existence of the initial entry exam - and the proof of service from that date in addition to the admitted lack of STRs as sufficient evidence to prove a CUE was commited.

Lastly, this issue is on appeal (DRO). Can a CUE be claimed on this, or do I have to wait until the appeal is resolved?

Edited December 5, 2012 by justrluk

[Berta]

VA cannot commit a CUE, it they do not have the records that a CUE is based on.

However, it amazes me how often 'missing' records can possible turn up.

And I assume they did apparently have some,if not all of your STRs, for your present rating

This is an award for newly discovered service records, that gave the veteran a more favorable EED:

http://www.va.gov/vetapp12/Files2/1212421.txt

If the records are found this is the regulation that can re-open the claim with a possible potential for many years of retro in some cases:

and

“Posted 26 April 2012 - 06:55 AM

We briefly discussed 38 CFR 3.156 on last night's SVR show.”

That show is in the SVR archives here.

But you asked specifically ---

“If my STRs are missing and the VA made a decision based on their assumption that a condition was pre-existing when it was not (they mention in the decision the lack of STRs) that would have changed the rating at the time, would this be a CUE? “

In my opinion, it would be a CUE if the VA failed to demonstrate clear and convincing evidence that the disability pre-existed prior to service.

http://www.va.gov/vetapp12/Files5/1232497.txt

Also please see my next post.

[justrluk]

Thanks, Ms. Berta! I'll do that...

[Berta]

Sorry I forgot to post this, if you CUE the decision:

3. Determining Direct and Presumptive Service Connection, Continued

d. Definition: Presumption of Soundness

The presumption of soundness means that Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service.

Notes:

• 
  The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service on which the claim is based.
  
• 
  Only the conditions that are recorded in the examination report are to be considered as noted.
  
  
  
  When no preexisting condition is noted at entrance into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence showing that the disease or injury
  
  • 
    existed prior to service, and
    
  • 
    was not aggravated by service.
    
    

  Reference: For more information on the presumption of soundness, see

  [*]

  38 U.S.C. 1111

  [*]

  VAOPGCPREC 3-2003, and

  [*]

  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

  Source : M21-1MR, Part IV, Subpart ii, Chapter 2, Section B

  I suggest to cite 38 USC 1111, and the VA General COunsel Prec 3-2003 (available at their web site_

  and certainly Wagner.

  I am sure Wagner V Principi as been discussed here in the past.

  I have been reading M21-1MR = a miserable boring and time consuming but enlightening task.

  The M21-1MR makes references that can often support a CUE claim.

  I have used print offs from M21 as well as the regs for my CUE claims.

[justrluk]

Ms. Berta,

Thank you for your valuable info. I noted in blue my particular situation:

Sorry I forgot to post this, if you CUE the decision:

3. Determining Direct and Presumptive Service Connection, Continued

d. Definition: Presumption of Soundness

The presumption of soundness means that Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service.

Notes:

• 
  The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service on which the claim is based. (I did and provided a document with my NOD to prove it)
  
  
• 
  Only the conditions that are recorded in the examination report are to be considered as noted.
  
  
  When no preexisting condition is noted at entrance into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence showing that the disease or injury
  
  • 
    existed prior to service, and
    
    
  • 
    was not aggravated by service. (The condition pre-existed my most recent period of service, but the decision did not include my initial period of service from 8/84 - 10/87. This is the period for which I provided the entrance documents.)
    

  Reference: For more information on the presumption of soundness, see

  [*]

  38 U.S.C. 1111

  [*]

  VAOPGCPREC 3-2003, and

  [*]

  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

  Source : M21-1MR, Part IV, Subpart ii, Chapter 2, Section B

  I suggest to cite 38 USC 1111, and the VA General COunsel Prec 3-2003 (available at their web site_

  and certainly Wagner.

  I am sure Wagner V Principi as been discussed here in the past.

  I have been reading M21-1MR = a miserable boring and time consuming but enlightening task.

  The M21-1MR makes references that can often support a CUE claim.

  I have used print offs from M21 as well as the regs for my CUE claims.

  Also, must I wait for the appeal to run its course, or can I file the CUE based on this information before the appeal is finished?

  Thanks!

[Berta]

"Also, must I wait for the appeal to run its course, or can I file the CUE based on this information before the appeal is finished?"

I must have misunderstood this- sorry

A CUE claim can only be filed on a final VA decision.

After reading your reply , I assume your appeal is regarding the exact same matter and the VA did not consider the presumption of soundness regarding your first period of service.

It sounds like your evidence is certainly good enough to get this rectified.

[broncovet]

I agree with Berta. I would, however, reiterate that you never want to "raise the bar" with a CUE unless that is the only resort. CUE is a standard of review of which the standard of "benefit of the doubt to the Veteran" is not for application. In its place is the "undebatable" standard, so a difference of opinion is not CUE.

Rather than make it harder for yourself by seeking CUE, Berta's suggest of 38 CFR 3.156 C sounds like it is much easier, and at least as lucrative.

If you have not studied 3.156 C, and, under what circumstances it gets you an earlier effective date, then you should certainly do this before persuing a motion for revision based on CUE.