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

[Jamezam]

Well I have saved years worth of medical opinions and theories on Scheuermann's Kyphosis (SK) all from credible sources. What I have discovered is that there are definitely two types of SK. Typical Type I (Thoracic) and Atypical Type II (Lumbar Variant) It has been proven the Type I SK is congenital and Type II SK is caused by incidents of one's spine not being fully developed and then placing unusual amounts of weight on one's spine. Which causes the lumbar vertebrae to collapse. I have Type II SK.

Whether or not SK is considered congenital a disease or deformity, the military is still on the hook for aggravation to a preexisting condition. The Presumption of Soundness doctrine comes into play because 1. I never had any back issues prior to enlistment and 2. There was no documented back issues at my entrance exam.

Berta, my SMR's, all of which I have on hand contain three years of diagnoses, continued treatment, all while being kept in the same Military Occupational specialty of 11H Anti-armor personal. There is no specific mention that my SK was aggravated due to service. Only that I DID NOT have back issues pre-military and a Physical Permanent Profile listing Physical Defects: as Chronic Back Pain from childhood disease (Scheuermann's Kyphosis).

You are correct my Rating Decision of June 8, 1988 states "that they only reviewed 3 months of evidence and completely ignored all of the other CFR's." The Rating Decision of June 8, 1988 is the actual decision I attached AND I do not have anything other than that. In addition, and I can't prove it, but I never received NOTICE OF PROCEDURAL AND APPELLATE RIGHTS.

The evidence (I believe) they used is DC 5299 represents a developmental abnormality, not svc agg. The Rating Decision, a copy of the exam is all they sent me and that's all that was in the last C-file I requested!

Maybe I should seek an attorney, because I don't have the patience or pain tolerance to continue on the Marry Go Round of whether I have a CUE or not. I'm going on my 29th f*cking year dealing with this claim!

In viewing the cited BVA it seemed reasonable, especially since the soldier and I have the same diagnosis and same type of denial, ""DC 5299 represents a developmental abnormality, not svc ago", that the CFR's in the citations and the BVA language would bolster my CUE. So, considering we were both denied for the same condition and reason. And, the RO in his case didn't take into account aggravation over natural progression of the developmental condition,  because the RO concluded the condition was congenital and not aggravated by military service.

Quote

 

The Joint Motion emphasized that the May 1975 VA examiner did not provide a specific statement as to whether the aggravation of the Veteran's Scheuermann's disease was beyond the natural progress of the disease. In this case, the RO improperly concluded that the claimed condition preexisted service without making a finding that there was clear and unmistakable evidence of preexistence and the additionally required finding as to whether there was clear and unmistakable evidence that condition was not aggravated by service.

Had the rating agency in June 1975 properly applied extant law, i.e., made a specific determination as to whether or not there was clear and unmistakable evidence that the Veteran's back symptomology at the time was due to the natural progress of his Scheuermann's disease rather than aggravated by the in-service motor vehicle accident, the outcome would have been manifestly different. Consequently, the June 1975 rating decision erred in its denial of service connection for a back disability. But for the rating decision's legal errors, the outcome in the June 1975 rating decision would have been a grant of service connection for a back disability due to in-service aggravation of a preexisting congenital condition.

 

So, why wouldn't the same circumstances apply to my CUE? Aside from not having a notation of "possibly aggravated or aggravated" in my SMR's. The RO in my case still did not make a specific determination as to whether or not there was clear and unmistakable evidence that my back symptomology at the time was due to the natural progress of my Scheuermann's disease rather than aggravated in-service!

Thanks for your assistance and I know you can appreciate how absolutely frustrating this is to me. I will review my entire SMR's again and look for any reference or notation to "aggravated by"...

Edited July 3, 2016 by Jamezam

[Jamezam]

Here is the only other report I have with my original June 8, 1988 Rating Decision.

 

Edited February 27, 2020 by Jamezam

[Berta]

I hope I didn't sound  like I was discouraging you. I am not, but I sure know how miserable this stuff can be.

VA wants us to get so confused or exasperated that we just walk away.

I am beginning to think the VA did not even have your SMRs at all when they did the C & P exam.

With no evidence list they could have easily denied without considering this:

"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. "

To have the Mil request a med board review shows that obviously you were having problems with this disability in service.

The cases you mentioned are great CUE templates....but if you send them a BVA decision as evidence they will ignore it I am sure. If you narrow down the same CUE basis from what these awarded claims involved,with the legal citations (like the Gen Counsel Pres Ops,) that is different. I say this because the BVA gave me a clue once in a decision that was rendered moot because I had been awarded at the RO level on a different basis and did not know I could have withdrawn the appeal. Years later I was glad I didnt withdraw it because the BVA rendered a hypothetical legal statement in it that I actually proved years later.

When I was awarded by the BVA for a different claim, I used the older BVA decision, highlighting what the BVA had stated (a legal point specific  to me in the decision) that warranted over 59 thousand bucks.But I actually had to get the General Counsel to get them to pay that to me, in spite of what the BVA had stated, because the RO would not even read my past BVA decision....which clearly supported the refund .The General Counsel read it and told them to pay me.

VA is quick to say, also, that BVA decisions are only specific to the claimant they are render to.Another reason not to send them a whole BVA case.

But picking apart those similar  BVA decisions ,where they cite established VA case law ,can be worth the time that takes. Then you are citing not a BVA decision but solely VA case law and the VA cannot  say the 'decision" is only specific to the claimant who got it.

If VA failed to get your SMRs and that failure was to your detriment (because they did not rate you properly based on the SMRs,) that is a CUE under 38 CFR 4.1 et al, and specifically 4.6. That could be a good approach to file the CUE for failure to obtain your SMRs under 38 CFR 4.1 et al to include 4.6 )because you could use that to draw them out, telling them (and enclosing copies of ) all you received from them on that claim)

If that is all you got from VA, (just the rating sheet and X ray which still does not make sense to me)  then that is probably all they had too. And didnt even have your SMRs.

It is possible.

They deemed the disability as a "defect" via the C & P exam  so maybe they figured why even bother getting those SMRs.

 

 

 

 

[Berta]

One more point....

(The CUE you wrote is Good but I think it can be reworked a little to use 38 CFR 4.1 et all (to include 4.6)

Do I understand these acronyms and dates correctly in the denial rating sheet?

EOD 4-24-85    Enlistment date?

RAD 3-15-88 date of your discharge?

Claim filed  3-29-88

C & P and X ray done on 5-4-88

Decision June 8 1988  

 so claim filed March 29      2 days left in March

                                           30 days in April

                                             4 days in May

36 days.......how the xxxx  did VA get the SMRs in 36 days?

This was 1988 , before Fax and internet as we know it. Heck it takes vets here much longer than that to get their SMRs and they can request them directly from NARA on line.

I don't think VA even got them at all. ...........

[mos1833]

jamezam

my claim was never awared . but i am makeing plans to cue aswell.

the word defect is a killer

 

 

[Jamezam]

Thanks Berta,

I was doing exactly what you stated when your email arrived. "If you narrow down the same CUE basis from what these awarded claims involved, with the legal citations (like the Gen Counsel Pres Ops,)"

I was never going to send them BVA citations nor was I going to quote and BVA citations. I'm pretty good at thinking like an attorney and have been successful in the past filing claims with state Attorney General's and winning, and successfully suing five different companies over some Fair Credit Reporting Act issues, and winning all five. If you notice, my CUE was titled CUE Development. So, I am developing my CUE and I simply created references for me to remember how to develop my CUE.

The VA is the absolute most frustrating government agency out there and the do want us to give up. It's when I am ready to throw in the towel because of how absolutely angry I get because of how they treat us Veteran's, that my resolve is renewed.

I am now working on my final CUE draft with all BVA verbiage removed, while keeping some of the VA case law and referencing OGC Pres Ops , 1-85, and 82-90.

Question, I found 82-90 which replaces 1-85, which I cannot find. Is it important to have a copy of 1-85? The BVA references both in the citation I attached before, which is strange to me because I thought CUE's have to be based on "know at the time or law that existed. In that soldiers claim 1975.

Quote

or the evidence to sufficiently establish CUE in a prior determination, there must be a sufficient showing that (1) the correct facts, as known at the time, were not before the adjudicator... or the statutory/regulatory provisions extant at that time were incorrectly applied; (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.

If only I could somehow know if the VARO had my SMR's at the time. If they didn't have my SMR"s how or what records could have the RO used when he stated "Vet eval for 3 mo. history of "back pain"? I filed my claim in March 1988 and had a C&P in May 1988. There was no private physicians even involved in the short month I was out of the Army. So the RO have to review something...

Again, the rating decision, VAE and X-rays are all that have ever existed in my records  (which I made an entire copy of before leaving active duty) and my C-file that I requested a few years ago. Did you notice that the VAE stated "He has had problems with his lower back for approximately the last two years? Where did he get his information? What happen to the whole missing year?

Even though the RO calls my condition a "developmental abnormality" that still didn't preclude him form taking VAOPGCPREC 1-85 into account, which clearly existed three years prior to the RO's rating decision on my condition.

Okay, thanks again, I'm back to my CUE now...