Duty To Notify

[free_spirit_etc]

Is failure in the duty to notify part of the duty to assist stuff that is not a CUE?

Or can it be one of those procedural errors that can be argued as a CUE?

Thanks,

Free

[free_spirit_etc]

Thanks. That is some useful information. SO all information of record would be all the info that SHOULD have been of record...if you did your part and the VA did not do theirs --or notify you that they hadn't. This sounds like one of the cases I read when the VA had not obtained the claimants SMRs NOR notified him that they were not available.

Free

I'm not positive but failure to notify does seem to fall under the duty to assist. While failure of the duty to assist in itself is not grounds for CUE there are other considerations.

In my case, I had given the VA all necissary info of my injury to obtain the records. I was denied twice for the lack of these records and the first one left me with the impression they did not exsist. I did not appeal. I later learned, after finding them myself and reviewing my C-file, that the VA never once requested these records. Not even from me. I was never notified that the records were not available (because they were). VA CUE'd themselves and I was awarded to the origanal claim date.

If they had requested the records and could not get them it would not have been CUE. If I had not provided enough info for them to get them it would not have been CUE. It was CUE because they had made a decision without using all of the information available to them. The outcome of the decision (denial) would have been different if they had considered all of the information available. (The information was available, they made a decision without looking at it) Not because of a lack of Duty to Assist.

I hope I said that right.

Time

[Josephine]

You'll have to go through your c-file to see if you or anyone else had informed the VA that there had been treatment in service and by who (facility) and approximate dates. That is when the VA knew there was additional evidence to consider. If they didn't have this info,(all of it, facility, date, the purpose of treatment) it will not be CUE and you'll have a very hard time getting the EED on this issue. There may be other conciderations but not this one.

I think that's what your asking?

Time,

I told the counselor, but the code that they placed on my DD214, also told them of the records. When the Va. Placed the code 460, this would have told anyone in the Va. that there were letters from a Competency Review Board.

In 2002, I wrote a letter for them to secure those records, they never told me that they didn't have them, the counselor told me that was my complete file.

Not true!

To receive an early discharge, there is just no way that they didn't know, because you can not receive an early discharge without going before a board of psychiatrist.

The letter from the Commmanding Officer was on the Administrative side of my file.

I know that psychiatric records are stored separately, but when you read the letter from my commanding officer, he himself makes reference of the other records.

Without the Competency Review Board Papers, and consultations there would have not been an early discharge for me.

Opinions Welcome

Thanks,

Josephine

Edited November 15, 2006 by Josephine

[timetowinarace]

That is not as clear cut as my case was but it may win in court. When you get the SC rating I think you have enough to make a CUE claim worthwhile for EED. I don't think the RO will go for it but the court might.

Simply put, I think it's worth pursuing.

Time

[Josephine]

When I filed in 1978, I told the counselor to secure the competency review reports. He knew exactly what I was talking about.

Without these records, there was no reason for the Va. to give me the time of day and that is exactly what they did.

To repeat the same mistake in 2002 is inexcusable.

They didn't mind not giving me a C&P with either filing date.

If the courts make a ruling, I don't believe that the R.O can have any say over this matter.

I have never heard of the Regional Office overturning a ruling by any of the judges at the Court of Veterans Appeals.

Maybe I am wrong, just never heard of.

Josephine

[timetowinarace]

I never got a C&P for my denied head injury claim. Denied twice without exam.

I think you have a good claim, and CUE. Keep at 'em.

Time

[Josephine]

Time,

I didn't get a C&P either in 1978 or in 2002, only after the new and material evidence.

Thanks for your encouragement. I can't let them get to me now.

I have to fight to the end.

Always and thanks,

Josephine

Edited November 15, 2006 by Josephine