Where Do I Start...regular Claim Or Cue?

[Manonfire]

Hi everyone. I'm so glad I found this site. This is bit of a long story so please bear with me. I'm not sure where exactly to start with this and was hoping some of you could advise me.

In spring of 1987, after serving 2yrs in Army Reserve as a Combat Engineer (12B), I decided to go active duty. A pre-enlistment medical examination at the Beckly WV MEPS center found me to be without any conditions that would disqualify me for service. Shortly thereafter, though, while on leave, I crashed a motorcycle and spent a couple of days in the hospital due to various injuries.

I then had to go back to the MEPS to have the doctor reexamine me. Again, I was a cleared for active service and sent on my way to active duty.

During active duty, I injured my back, multiple times from carrying heavy loads. By then I was in Germany and it was then noticed that I had a condition called Spondylolisthesis. The Army then subjected me to numerous xrays, a bone scan, and physical exams in Nuremburg. All of those finding were then sent to Walter Reed for medical board review. I never did one day of PT while in Germany for the 14 months I was there.

Several months later the Army medical board review came back saying that military service was aggravating this condition and thus declared me as 10% disabled. I was then given orders for an honorable discharge and severance pay and exited the Army in August of 1988 at Ft. Jackson, SC. I don’t recall receiving a discharge physical.

When I got back home, I promptly filed my medical claim with the Huntington WV, VA. They reviewed the case, but never gave me a C&P exam or a physical, and eventually denied me as being service connected. I appealed and also tried later using a VRO which didn’t help and was promptly rejected again.

I also was limited for any further medical care since I did not meet the 24-months of continuous active service requirement even though my DD214 clearly states that I was discharged for disability and given severance pay (which nullifies the 24-month rule). They did see me on a few occasions at the clinic due to my low income however by then I was on Medicade and began seeing a private physician.

About ten years ago, without any assistance or records, I filed electronically hoping that the VA would review my service medical records and grant my claim based on the clear findings of the MEB. Again there were no C&P exams, consultations, or physicals and was again rejected due to no “New and Material” evidence. By then I had decided there were other vets worse off than me and gave up.

After living in Ohio for the past few years, I recently began having headaches and went to the Cincinnati, VA Hospital ER for help and to make sure I wasn’t having a stroke or unknown tumor in my head. While there the eligibility office discovered that the Huntington VA had made an error in denying my eligibility for services. She said that the 24-month rule was nullified due to the fact that it says on my DD214 “Physical Disability with Severance Pay” and entered me into the system as eligible for services.

This got me to thinking that I should reopen my claim since the Cincinnati VA said the Huntington VA was in error.

My back continues to deteriorate but I have no records from my private medical doctor (retired/died) from the 90’s. There wasn’t much she could advise on my back then anyway other than to tell me to take it easy, try to strengthen abdominal muscles, etc. So I have nothing to show from the 90’s.

In the early 90’s I was also diagnosed with Depression and placed on medication. I continued treatment until 2012 (had to stop due to no medical insurance). Sleep Apnea was also discovered within the last decade. The treating physician said that more than likely I had sleep apnea when I was in the service (I could sleep in or on anything). She said she could write a letter stating so if needed.

I’ve requested a copy of my files from previous physician, and from National Archives in St. Louis which I’m praying contains my MEB decision and all of my treatment records while in Germany.

Since I have been declared “eligible” for medical services, I am hoping to soon begin evaluation of my various conditions.

Questions: Would I have to start a new claim? I looked on eBenefits for previous claims and don't see any records.

If I start a new claim and won, would I be able to claim retro pay? If so, how?

Is there clear and unmistakable error in this with Huntington VA claiming I didn't have the 24-months? What about not getting any C&P exams?

I'm off to see a county provided VRO but was wondering if I should see a lawyer for this or my congressman as he takes vet casese.

Thanks to you all for any advice.

[FormerMember]

There are two things we hit the wall on. Finality of decisions is one. If you simply reopen a claim and win, your effective date becomes the newer of the two claims. You will spend, as I did, at least eight to ten years fighting it up to the CAVC for any perceived earlier effective date. A CUE claim on top of the win for an EED is two different battles and would take even longer. VA doesn't give in without a quarrel. I know from personal experience. The best way is to assemble the evidence needed to rebut the finality of the 1988 decision. It's an RO decision so is far easier to overturn than a BVA one.

When you reopen based on service dept. records that existed but have never before been introduced into evidence, they constitute revisiting the original claim in 1988 and automatically allow this as the date of claim if, and only if, they are pertinent to the disease/ injury or are instrumental in coming to a finding of fact. These are the only two options to overcome finality of decisions. I cannot count the number who have fought the EED battle and lost due to having failed to appeal a past decision. A simple 21-4138 that said "I disagree..." was all that was needed. Sadly, we lack Deloreans with gigahertz flux capacitors to go back and correct our errors.

Sadly, too, there are tens of thousands of these kinds of errors lying around. Hell, I spotted mine the day I won. 2008 is not 1994. Similarly 2015 is not 1988. Hellooooooooooooooooooooooooooooooooooooo?

Edited May 21, 2015 by asknod

[john999]

I failed to file an NOD on my 1973 rating which granted me just 10%. Even though the VA did all sorts of horrible things in my initial rating the fact that I did not appeal the initial decision was what they ultimately used to trip me up. I spend 8-9 years going from VARO, BVA, CAVC, back to BVA, CAVC again and the Federal Court. The VA did not consider all evidence of record but because of regulations in 1973 I can't prove or disprove that fact although it is obvious to anyone with third grade education the VA did not consider evidence in the record favorable to a higher rating. I was 22 years old and confused and bewildered by the VA. I trusted that they would do the right thing. I was a fool. They depend on us being young and dumb and vulnerable. I never got exit physical and army doctors that could have helped just would not cooperate. Half my medical records were lost. Only the ones that supported Army and VA thesis survived for some reason. The Green Machine vs Pvt. King, but I won eventually.

John

[broncovet]

I would like to add this:

A very dear friend, who just "happens" to be a genius, told me once:

"When faced with a decision, its usually best to select the choice that leaves the most options open".

In your case, "filing a new claim" would "leave open the option" of filing a CUE later, since there is no time limit on filing a CUE.

If you did file a new claim, you would have still ONE MORE option available in the event your benefit was awarded, but at an unacceptable effective date:

You could simply appeal the effective date of the "new" decision, and may even be able to get your desired effective date without the extra burden of the Cue standard. (You lose the benefit of the doubt, with CUE).

Edited May 22, 2015 by broncovet

[FormerMember]

Loyal, if you have already filed for this and been denied, remember that a new filing is considered a "reopen" of the old, previously denied (and unappealed) claim. You will never be able to attain an EED from a win. The trick is to win the claim via 3.156(c ) or the CUE-but not both. If you file to reopen and win, you get the newer date with no chance to argue the old one. Failure to appeal the 1988 claim was fatal to it's continued viability. That is the immutable wall of finality. At that point, your only recourse is to then file a Motion to Revise the 1988 denial (CUE). Any way you look at it, that is two different adjudicative actions as I clearly described above. Just because you win a reopened claim doesn't allow you to reach back to an unappealed one absent mitigating circumstances like mine. This is the essence of Fenderson logic. Once you win a protracted case, either by CUE or 3.156(c ) you then go back to the original claim date and begin ascertaining the degree of disability. In old CUE claims, VA initially said Fenderson was not for application. The CAVC said otherwise. In any case, if the 1988 decision were to be overturned via CUE, the newer, reopened win would be considered void ab initio and thrown out anyway. A complete new adjudication would have to ensue using Fenderson staged ratings from 1988 to the present based on the EOR in the interim.

At the ROs across the fruited plains, they have two separate teams for claims and revisions. The hot shot RVSRs and lower DROs do the CUE stuff because it requires far more development and a gomer that's good at constructing denial semantics. It takes far longer than a regular claim, too. There is no FDC for CUE. Most CUE's lose anyway. It will undoubtedly go up to the BVA and most probably to the CAVC. That much money is not going to be handed out with an apology for the delay at the RO. For confirmation, look at old Leroy MacKlem's case. I filed my last CUE in October 2011. It was decided by a DRO in Sept. 2013. I lost. I appealed and there it sat w/ a VA 9 until I filed the Writ. All of a sudden-wham- they reversed based on the same identical evidence they had all along and also gave me the 10% illegal claw back for the scars. You simply will not get any justice at the RO on these big $ ones locally. It's above their mental pay grade.

P.S. Remember my Double Whammy technique, too. There is no law that says you cannot run both claims simultaneously as I did with my CUE and a separate one for the disabilities based on another theorem. VA would have us believe, by using VSOs as our informational outlet, that we cannot do these things. We are in a new era-Boldly going where no Vets have gone before. The internet opened the Pandora's box of ugly VA truths and they cannot stuff her back in.

Edited May 22, 2015 by asknod

[Buck52]

Ms Tbird

Has some good Information also about Filing CUE!

.....................Buck

Edited May 22, 2015 by Buck52

[Manonfire]

I think you sure need to start a new claim, and also possibly consider filing CUE on the past error they made, if they award for the new claim..

"Several months later the Army medical board review came back saying that military service was aggravating this condition and thus declared me as 10% disabled. : But the VA Denied?????

Can you scan and attach the Reasons and Bases part of that denial here? And the Evidence list? (Cover C file, name, address prior to scanning it.?

Do you also have a copy of your C file?

I am thinking the might be a LOD from the MEB in there as well as the evidence you need now....

My theory is this...if the VA had probative evidence years ago and failed to consider it at all...and the veteran did not appeal and raise the evidence issue, then that is now New and Material Evidence.

"If I start a new claim and won, would I be able to claim retro pay? If so, how?"

If you can successfully prove CUE in the past denial of the SC, and the SC raised to a level of at least 10% then.

"Is there clear and unmistakable error in this with Huntington VA claiming I didn't have the 24-months? What about not getting any C&P exams?"

I sure think this is a CUE but need to read that older denial decision to really see where the CUE would lie.

But this could be a problem:

"My back continues to deteriorate but I have no records from my private medical doctor (retired/died) from the 90’s. There wasn’t much she could advise on my back then anyway other than to tell me to take it easy, try to strengthen abdominal muscles, etc. So I have nothing to show from the 90’s."

Definitely claim the depression if you believe it stems from your service as well as the sleep apnea.too....

Hi Berta,

Thank you so much for the advice. Yes, I have requested my c-file from VA and have requested my outpatient records from Archives. I'm seriously, seriously hoping they are all there and that nothing has been lost.

For the life of me I cannot recall all of the details back from the first claim and hope everything is in the c-file. I think the worst thing would be is if they've "lost" or "can't find" my files.

If I win this then I hope I canget enough to just retire. I'm only 47, but I can already tell I'm gonna have serious health issues in another 10yrs or less. This getting old stuff is for the birds. Thanks again and I will update as soon as I get those records.