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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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hawkfire27

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This is a PTSD CUE award ( and 38 CFR 3.156(c)) back to 1983:

"His first approved claim was in 1975 at 30% for Anxiety Neurosis with Depressive features (I have previously posted this was in 1979 by mistake). We went to the VA to get a copy of this ratings letter, but they claim it has been lost. "

Does he have a copy of his complete C file?

Their decision and rationale on the older claim (1975) would be critical to a finding of CUE in that decision.

 "He could try for a new and material evidence claim based on the Army letter his got in the discharge upgrade process, but again PTSD did not exist so I'm not sure this would help."

It sure might help if you file CUE as well as raise 38 CFR 3.156 issue as in the above link.

CUE claims depend on the decision being Cued. I always sent VA a copy of any decision I filed CUE on,to include the rating sheet. because most CUEs, in my opinion, are errors on ratings, or diagnostic codes, as well as failure to consider probative evidence.

My last CUE ,last year was awarded due to violation of 38 CFR 4.6, which has been around since I believe 1975.(1998 decision HBP 1151)

But I could prove with the decision being cued, that my probative evidence was not mentioned in the Evidence list because VA had ignored it and supplied a ridiculous 'medical' rendition to deny the claim at first, a so called "medical opinion "which was probably prepared by the guy who fills the paper cup dispenser at their water cooler...yet my sole piece of evidence was from VA's top Cardiologist at VACO with HBP as one of her specialities. There was no question at all that the 1998 decision contained this CUE , and 3 others as well ,awarded in 2012 and explained in our CUE forum.

The 1998 decision was an award letter but

my point is that I needed that 1998 decision, the VA reasons and Bases, and the rating sheet for all of these CUEs so I hope somehow you can find the older decision.

 

 

 

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I agree with Berta...its very difficult to allege CUE on a decision that VA conviently lost.  The VA posits its the VEterans fault whenever VA loses the Veterans records, that is, the Veteran must bear the burden of proof when VA loses records.  

The only real way to really make the judgement call is to order your cfile, and to review it and see if there is an instance of CUE.    I would suggest you do just that...gather up everything and take it to a NOVA lawyer.  You dont have to actually hire the lawyer to get his/her opinion if there is CUE.  

The problem with someone making a judgement call based entirely of your recollection is that the judgement call can be no better than your recollection of events.  This is why you need the cfile..to see what doctors actually wrote, and if VA violated regulations.  For example, if you did not get notice of this decision, then the decision did not become final and its still pending.  The one year period runs from when you get notice of the decision, informing you of appeal rights.  My intuition on this is that you get a lawyer to allege this claim is still pending.  However, it could have been subsumed by more recent (appeal) decisions, and, if you failed to appeal those, then this may not work.  

I think its Clear error for VA to lose the decision, myself.  I dont know if  this has ever been tested in court, but Im not sure why except that VA does not want this shredding black eye so they "settle" them out of court.   This is an obvious incident of "document mishandling"...they admit the document exists but can not find it, so VA obviously shredded or mishandled it.   CUSHMAN does address, somewhat, VA fraudulent evidence alteration.  

http://caselaw.findlaw.com/us-federal-circuit/1346393.html

Cushman suggests that VA altering the evidence is a due process violation, 38 CFR 3.103.  And, VA losing the evidence they have admitted exists, would be such a violation.   Do you have some record that the VA has admitted to losing this decision?  Remember the VA lies and could change their position if it serves their interests.  

My suggestion:  Look high and low for this decision yourself.  Go through all your old files, a VARO decision is not something that is usually discarded, at least not on purpose.   Personally, I can not see a CUE happening on a decision that nobody knows what it is.  The first thing in a CUE is you have to plead a cue with specificity:  EXACTLY what was the error?  A general "this is CUE" wont fly..you have to allege a specific legal or factual error for CUE.  

After you gather everything, take it to a NOVA lawyer who represents Veteran claimants.  Several have been mentioned here, almost all will review your case to see if they are interested.  You may need to take it to more than one, as attornies have "favorite kinds of cases".  Ken Carpenter took on a CUE, it has been my experience lawyers avoid CUE.  

In sum, I think your best attack is for your attorney to allege the claim is still pending..that the one year clock is "tolled" because you did not receive notice of the decision, so you can file a NOD on it "today".  But I can not/will not make that judgement call without reviewing all your evidence, and you should have an attorney do just that.  

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