Cue Claim And Claim For Secondary Condition

[john999]

I filed a CUE claim today at the St. Petersburg Regional Office and a claim for a secondary condition for DMII. I just found out via a CT scan that I arteriosclerosis in my legs. I have read the DMII traning letter, and it says that cardiovascular complications like peripheral arterial disease are common complications. I already have perhipheral neuropathy in my legs and now I have PAD it looks like. It this something I should claim as a secondary condition to DMII. I am getting exactly no special follow-up for this stuff from the VA and I only find out by accident about the PAD. My relatieves on both sides of my family have lost limbs due to amputations so I am bit worried about this and want to know if I should try and claim it. I know PAD progresses and If I am going to one day lose a leg I want to claim it now.

[Angela]

Carlie,

I am also very interest in the relationship of the benefit of the doubt rule in conjunction with CUE claims and would love to have someone to discuss it with who is also interested. Here is a portion of what I have been preparing in anticipation of arguing the issue with the BVA and the Appeals court.

....

I agree that you can't win a CUE based on "disagreement with how the facts were weighed" and/or "failure to apply the benefit-of-the-doubt". In my case, the VA failed to consider evidence. If they didn't consider it, they certainly couldn't have weighed it. And if they didn't weigh it they couldn't have applied the benefit of the doubt because, by law, the benefit of the doubt doesn't come into play until all evidence is considered.

I know the benefit-of-the-doubt cannot be applied to the question of "ERROR", because the error either occurred, or it didn't. But if the error complained of is clear, and/or acknowledged by the VA, then it seems to me you are still entitled to the benefit-of-the-doubt on every OTHER factual determination material to the final decision.

USC 38 5107( - the benefit of the doubt law says - " when there is an approximate balance of positive and negative evidence regarding ANY issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.

AND

UCS 38 5109A(e) - the CUE law states ... "shall be decided in the same manner as any other claim".

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Also, check out the decision portion of BVA decision on a CUE, decision number 0121036, that says...

"the Board finds that the evidence when considered in its entirety now serves to establish that the service-connected PTSD was * LIKELY * manifested by severe social and industrial impairment and demonstrably precluded him from performing substantially gainful employment as required for the assignment of a 100 percent rating under one of the criteria in Diagnostic Code 9411 in effect at that time."

[john999]

In my CUE what I contend is that the VA did not consider my doctor's evidence at all in the decision. I did not state that my CUE was based on my not receiving the benefit of doubt but if the evidence was considered I should have received it. The VA said I had a mild depression and my doctor said I was severely disabled and unable to work. Big difference.

[carlie]

John,

See if this applies to your claim in anyway.

carlie

http://www.va.gov/vetapp05/files1/0506205.txt