CUE and Benefit of the Doubt Help

[Jamezam]

I've decided to take a crack at creating a CUE and Benefit of the Doubt failure for a claim that was originally denied in 1988, but finally approved in 2014. And, I currently have a pending NOD on the effective date of said claim.

I would be so grateful if anyone could view my CUE and original claim denial. My question is this, am I on the right track with my CUE? I have been developing my CUE using language based on an actual citation by the BVA awarding a CUE to a veteran for the same condition and circumstances in which mine was denied and quoting Title 38. It's so easy to get confused with all of the information out there.

So any advice will be greatly appreciated. I have uploaded my CUE in development phase and original claim denial.

 

 

Edited February 27, 2020 by Jamezam
Deletion of Attachment

[Berta]

The problem I see with the CUE is that it appears the VA gave you a "0" non compensable rating in the older decision.

A Manifested out come would be , for example, a 10% rating as NSC, that ultimately became a SC disability.

If you can prove that the established medical evidence in time of the older decision,in VA's possession warranted a rating at least at 10%, then ,since you have succeeded to get this disability SCed, you would have a valid basis for CUE.

A personal claim I had awarded not too long ago might help.

A 1998 posthumous decision they rendered for my deceased husband contained one or two NSCs at "0" rating.

Another NSC rating was 80%,  and one at 10% and the decision correctly stated his 100% SC P & T for PTSD .

My vet rep at the time (I would never get one of them again) advised me not to NOD the decision even though I felt I should but didn't until many years later I filed , in total 4 CUEs on it. (I keep forgetting the 4th one because it was actually awarded very fast. The other 3 took about 6 years to award....and awarded at a RO level not the BVA.

One CUE was on the 80% rating (which became 100% as if SC and the 1151 10% for HBP was awarded not that long ago.

So, I had ratings on issues that indicated if my CUEs suceeded ,they would have to make awards, with retro, which they did. They had to award the 1151 80% at 100% P & T because the established evidence they had at time of that decision warranted a 100% P & T rating. Same as the HBP claim.

If your VA medical records revealed medical evidence in 1988 that the disability should have been rated at least at 10%, based on the diagnostic code and regulations at that time, you would have a CUE under 38 CFR 4.6.

What is the SC rating now for this disability?

In the same 1998 decision ,even though they admitted to negligence that involved my husband's heart disease they never even  rated that at all. That was a separate CUE I filed. It was only about 2 short paragraphs long. 

That was awarded and rated under Nehmer .

Another malpracticed condition also was never rated at all, DMII due to AO.But I filed that as direct SC.

CUES, in my opinion should be short and to the point. The established medical evidence in VA's possession at time of the alleged CUE is part of what they strongly rest on,.

Neither I or my husband had any idea of what established medical evidence the VA had at time of his death. 

When I obtained his VA medical records, those records revealed how they malpracticed on him. For 6 years beginning in 1988. and those records held the established medical  proof of my CUE claims.

There might be more in your VA records for the Scheuerman's Kyphosis than you realize.

 

 

 

In other words I knew I would have had a manifested outcome of the 1998 decision, if the 80% rating and the 10% rating could be SCed under 1151. The entire decision was their admission of malpractice that caused my husband's death, so the medical evidence for these CUES had been established in the veteran's lifetime to garner the award letter. Actually it might have been 5 CUEs.

I sent them copies of the established medical evidence along with these CUE claims when I filed them.

Also you need to give them the date and copy of the actual decision that you feel holds a CUE.

 

Edited July 2, 2016 by Berta

[Jamezam]

Thanks Berta,

I never received a rating at all. That is even though they state NSC I didn't even get a 0 rating. It looks like they crossed it out back then for whatever reason.

The CUE citation I mentioned said exactly that, that the RO did not take into account aggravation to a condition even if the RO considers it preservice. You know the whole presumption of soundness doctrine. And, they never addressed how my condition was aggravated by my military service, they just kept say NSC as a childhood disease.

Quite literally from the time I entered basic training until the day I got out I began having major back issues. So I have SMR's from 1985 until I ETS'd in 1988 with visits to the aide station, 97th General Hospital in Frankfurt, Germany for x-rays, physician orthopedic exams, etc. And, the whole time the physicians and orthopedist are requesting a medical review board for me, which they never once afforded me. So, my VA medical records reveal medical evidence my entire time in active duty.

I should have been rated at least 10%, based on the diagnostic code and regulations at that time. However, the RO seems to imply that they only reviewed 3 months of evidence and completely ignored all of the other CFR's.

Right now my SC is 20% for Scheuermann's Kyphosis Dorsolumbar Spine.

Quote

In the same 1998 decision ,even though they admitted to negligence that involved my husband's heart disease they never even  rated that at all. That was a separate CUE I filed. It was only about 2 short paragraphs long.

That's what I am trying to accomplish. Keeping my CUE claim as short as possible while including everything they screwed up on (more ammunition against the VA in my mind), and trying to insure they don't say, "nope you don't have a CUE. That's why I was looking at BOD too. 

How does one keep their CUEs, short and to the point? Are you saying to just say I have a CUE and the established medical evidence in VA's possession at time of the alleged CUE should be enough?

Neither I or my husband had any idea of what established medical evidence the VA had at time of his death. 

This area really makes me angry and is quite scary too. I'm so used to being denied, denied, denied even with excellent records and IMO's from many physicians 

Believe me I've been pouring over my records for 28 years now and I am 99% sure I haven't missed anything. I'm not an attorney even though I am pretty good with legalese and because the VA definitely likes to battle, it makes me a little fearful of wasting more years fighting a losing battle. That's why I want my CUE/DOB to be right and strong enough to get someones attention.

Edited July 2, 2016 by Jamezam
Update to post...

[Jamezam]

Here is the CUE of a service member who has Scheuermann's Kyphosis, was considered to be not service connected or aggravated by his service.

Our diagnoses' are pretty identical just the circumstances are different, that's why I figured the BVA citation would be a good one to model?

 

Edited February 27, 2020 by Jamezam
Deletion of Attachment

[FormerMember]

If you are going to use 3.102 as the foundation for the CUE, you're dead in the water before you even get out of the gate. You can read Russell v. Derwinski (1992) or my article of what constitutes a true CUE if you wish. Benefit of the doubt can never be the basis for the CUE-ever. 

The Secretary, in his brief, equates the adjectives "clear and unmistakable" to "obvious" as
used in 38 U.S.C. § 7103(c) (formerly § 4003(c)). That statute, which authorizes the BVA to correct
"an obvious error in the record," perforce means an "obvious" error, the existence of which, as noted
above, is undebatable, or, about which reasonable minds cannot differ. See Br. at 18. In view of this standard,                     the "benefit of the doubt" rule of 38 U.S.C. § 5107(b) (formerly § 3007(b)) could never be
applicable; an error either undebatably exists or there was no error within the meaning of § 3.105(a).

(Russell/Collins v Derwinski 1992)

 Russell is attached as a .PDF below and my article

https://asknod.org/2014/05/02/cue-the-quintessential-elements/

Russell_90-396.pdf

[Jamezam]

1 hour ago, asknod said:

If you are going to use 3.102 as the foundation for the CUE, you're dead in the water before you even get out of the gate. You can read Russell v. Derwinski (1992) or my article of what constitutes a true CUE if you wish. Benefit of the doubt can never be the basis for the CUE-ever. 

The Secretary, in his brief, equates the adjectives "clear and unmistakable" to "obvious" as
used in 38 U.S.C. § 7103(c) (formerly § 4003(c)). That statute, which authorizes the BVA to correct
"an obvious error in the record," perforce means an "obvious" error, the existence of which, as noted
above, is undebatable, or, about which reasonable minds cannot differ. See Br. at 18. In view of this standard,                     the "benefit of the doubt" rule of 38 U.S.C. § 5107(b) (formerly § 3007(b)) could never be
applicable; an error either undebatably exists or there was no error within the meaning of § 3.105(a).

(Russell/Collins v Derwinski 1992)

 Russell is attached as a .PDF below and my article

https://asknod.org/2014/05/02/cue-the-quintessential-elements/

Russell_90-396.pdf

asknod,

Thanks for the reply.

Here is a citation in which BOD is in fact used as part of the determination factor in awarding CUE.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files2/1615671.txt

[Berta]

ASKNOD is correct, BOD is never a basis for CUE.

Maybe you read a prior post I had here:

In part:

"Except his time is running out for all of this.........they did my last 2 GCY CUE claims within appeals , filed days after I got the decision...

and they were awards but I assure you they might not react to this vet as fast as they did to me...

I loved the one on the lack of BOD statement. The Director called me to apologize for both of their cues in these 2 claims.

The BOD CUE was not an award as such , but  it was a victory for the years of them crapping on me.. etc."

------------------------------------

(To me it was one more documented incident I have in my C file that proves my RO employs illiterates. And it was the first time in over 2 decades that I ever saw any RO fail to apply BOD to a probative claim,with evidence that was from the VA itself. It was filed as an 'enhancement' to the CUE they awarded ,after some outrageous shit they tried to pull on me.AGAIN. My CUE request,filed days after the denial, was awarded very fast when I raised hell.This was a 1151 HBP claim.) 

 

The CUEs you posted were beauties yet the RO wont consider them as supporting your specific CUE. BUT BVA decisions are  important when they clarify legal issues to the ROs.In that respect they could help.

I noticed the other day when I searched Scheuerman's Kyphosis that, early claims called it a congenital issue or a "defect" and then something changed because it became, in some circumstances service connectable.The OGC changed that.

The first BVA decision you linked has some OGC Pres Ops , 1-85, and 82-90 that clearly indicate "aggravation" of a congenital condition by service, is service connectable ( as to the extent of aggravation.)

The medical evidence they had at time of the decision (which should be all of your SMRs) needs to show that your pre existing disability was aggravated to a ratable level due to service.

You stated:

"I should have been rated at least 10%, based on the diagnostic code and regulations at that time. However, the RO seems to imply that they only reviewed 3 months of evidence and completely ignored all of the other CFR's.

Right now my SC is 20% for Scheuermann's Kyphosis Dorsolumbar Spine."

  Can you scan and attach here the actual decision you are filing CUE on or is what you attached all you have? I didnt see any evidence list at all or what I would think would be "Reasons and Basis".

In 1988 they certainly put that stuff into decisions. I still have a 1988 decision they sent my husband ..a reduction proposal. It stated the evidence they used and their Reasons and Basis for the proposed reduction.( Dec 24th,1988 )

We had a PC in 1988 but no internet as we know it now .I used the exact regulations from 38 CFR they quoted in the proposal against them , with more evidence,  when I wrote the NOD for my husband. About 8 months later his rep called us to say the proposed reduction had been dropped and a letter finally came in the mail.

There must be more to that older decision than what you posted here.