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CUE and Benefit of the Doubt Help

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Jamezam

Question

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 by Jamezam
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This one might be better:

VA has always been bound by consideration of Probative evidence.

 

 

 

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Berta, one thing that is confusing is that you and asknod had mentioned that BOD doctrine is not a basis for CUE. However, in the 1981 BVA case they cite BOD.

This is why I get frustrated. Too many opinions about what is a CUE and what is not. What to include in one's CUE and what to avoid. Especially when you've spent hours (about 24 in my case) siting at my desk in major pain working on my CUE. :blink:

BTW: Will I have to withdrawal my NOD before I file my CUE at the VARO level? If So, how does one do this?

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  • HadIt.com Elder

jamezam,

Found this over at the VBN Site

 
Unfortunately, the normal rules friendly to the veteran do not apply in a CUE claim. Specifically, this includes the following rules which do not apply (1) the "benefit of the doubt" rule which mandates the veteran receive every benefit of the doubt in the development and review of his or her claim; (2) the "new and material evidence" rule which reopens a claim if the veteran supplies new and material evidence; (3) the VA's duty to develop the claim in so far as it must obtain records and provide the veteran notice; and, (4) the VA's general duty to assist the veteran in his or her making the claim. These rules, the heart of VA claims processes, do not apply.
 
The focus of the CUE claim's review is not new evidence. In fact, new evidence is not admissible. Instead, the focus is on the evidence which was in the record, or which was in the possession of the VA but had not been placed into the record. The latter instance might include service medical records which had been misfiled or simply never properly retrieved by the VA in its development of the claim. While these records were not in the actual claim record, the records must have been in the possession of the VA though to be considered.
 
The focus of the VA's review of the CUE claim is whether the alleged error actually occurred, and, even if it did, would the result have been "manifestly different". That is favorable to the veteran, but for the error.
 
While a veteran may not challenge a final decision by a CUE claim based on the VA's alleged failure to develop the claim's file originally, or provide the veteran the appropriate notices required by the law, or any other failure in its duty to assist the veteran in making his claim, a CUE claim may be used to challenge the VA's failure to "sympathetically develop" a claim. However, this failure must be evident from a review of the actual record the claim was decided on, including other documents not in the claims' file, but which were in the possession of the VA at the time of the decision. This type of failure is most often focused on the VA's failure to develop the claim by broadly reviewing the evidence for all claims whether raised by the veteran or not. The VA's limited focus of reviewing the evidence failed its duty to broadly and sympathetically develop the entire range of available claims. That is, the VA missed a claim, although not raised by the specific language of the claim, which was raised by the evidence contained in the record.
 
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  • HadIt.com Elder

Look at the M-21-1MR CHAPTER 5 SEC -A

See Pages 5-A-11    =Withdrawal an NOD or Appeal.

Appellant Must Submit in writing request in order to withdraw as NOD or Appeal, except for appeals withdrawn on the record at a hearing.

Note:

Failure of the appellant to report for examination or furnish evidence by VA Does not constitute withdrawal of an Appeal

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8 hours ago, Jamezam said:


 

Anyway, after doing some more research I came across this gem from a CAVC case, that doesn't help my case in the context of what evidence the RO did or did not review. 

I believe my CUE all comes down to whether or not the RO considered in-service aggravation of a preexisting congenital condition. Courts have held that that the presumption of soundness, which is currently set forth in 38 U.S.C.A. § 1111, requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner; Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). In sum, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.

Berta, I'm not sure if 38 CFR 4.6 would even matter in my CUE. Because if I read the CAVC's opinion currently the RO prior to 1990, doesn't even have justify his decision. I.e., what evidence he did or did not consider?

 

You have to be careful which CAVC cases you cite to or depend on. Some law is superseded like Walker v. Shinseki (3.303(b) and Clemons v. Shinseki (a claim for a mental disorder encompasses all mental disorders). or Bradley (TDIU is equivalent to 100% schedular for SMC S). Karnas superseded Kuzma. The law is constantly in flux. You have to cite to the Fed. Circuit sometimes to get the perfect match. On old stuff like this that precedes the VJRA, you are right. I have decisions from our pals at Seattle from 1989 with a simple "Sorry, you lost. Come back when you think you have a case."

One other problem. I went back to look at the 1988 rating sheet. Regardless of whether you get the Presumption of Soundness (You do not as you admitted you had childhood Scheurman's kyphosis), the VA rater called it a developmental abnormality twice. That should set off alarm bells:

3.303(c)

(c) Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

Focusing on just one regulation or one theory for CUE isn't workable. VA will cut you to pieces. Try to play devil's advocate on a CUE claim. Try to find all the reasons VA will blow you off and then find the work around. I have had some of the most wonderful CUE claims I worked out on paper and then ran them by a VA attorney. It made me feel like a Kindergartner trying to play ball in the NFL. It's humbling. 

The evidence game is the hardest as you do not know what they looked at. As I mentioned, you cannot find CUE simply by saying they didn't read all the evidence if the whole premise of SC ends with 3.303(c) developmental abnormality. That's a non starter. The law the rater followed (4.71a)  DC 5299 (VASRD 1988) was current at the time so he isn't guilty of that. An argument could be made that the disability which preceded service increased in severity while in service. That would be grounds for CUE but since there was no requirement for a Reasons and Bases discussion in 1988, you lose. John999 lost his recent CUE all the way to the Fed. Circuit based on that.

You have to rise with the early birds to find CUE and then have to go the extra mile proving it would have manifestly changed the outcome and resulted in a compensable rating. Any discussion of Benefit of the doubt is a nonstarter, whether you cite to 3.102 or 4.3. 

I live in Gig Harbor- or actually even closer to you. I'm at the top of the Key Peninsula just off SR 302 north of Key Center. Your 1988 address was on one of the scans you attached. I moved over here from Tukwila in 1989 and began building houses hereabouts. Have a Happy 4th, sir.

 

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Thanks asknod,

Really all I can do, is do my best on my CUE. What are they going to do, deny that I have a CUE on my claim.

I've already been denied on not svc. aggravated in 1988. So even if I'm unsuccessful with my CUE I haven't lost anything.

I have to at least try to right their wrong and at least I know I've attempted that!

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