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2NDMARDIVDOC

Is this a CUE??

Question

Hello and thank you. Back in 2001 when I discharged I filed for several conditions and was awarded many of the ones I claimed. One I was turned down for was my overactive bladder which was diagnosed in the service and I was treated with medication. If I remember correctly the reason it was denied is because the VA said no evidence existed regarding that condition. I didn't contest it back then because of all the other stuff that did get granted. Long story short, I located a copy of my discharge physical on ebenefits and behold right there on the front page it said I had overactive bladder. I know the VA had that exam because they used it to grant the other conditions. So the question is, can I file 15 years later for a CUE since they had the evidence and didn't apply it? By the way, I still carry that diagnosis and still take medication provided by the VA so all records are current. 

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I assume you did not re apply since, for this condition.

If not, I suggest that you file for the condition,to obtain a SC rating and then refer to and enclose a CUE claim on the past denial...if, in fact, the symptoms and treatment , as within these following cases, did raise to a ratable level when you were denied.

“In this case, the Veteran contends that a disability rating in excess of 60 percent is warranted for his overactive bladder, which is rated by analogy under Diagnostic Code 7512.  38 C.F.R. § 4.115b.”

 

The BVA did not give him a higher rating, but the case shows how they rate this condition and the Diagnostic codes they use:

 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files2/1113212.txt

In this case, also awarded, the veteran did not characterize the condition properly but the BVA fixed that and he also succeeded.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files6/1546461.txt

You will need new and material evidence when you request the VA to re open this claim.

If you still have the denial ( hope so) or you might find it if you have an ebenefits account...???not sure

and if this is the reason they denied:

"If I remember correctly the reason it was denied is because the VA said no evidence existed regarding that condition. ", they obviously had your SMRs for the SC conditions, yet overlooked the critical evidence in them for the bladder condition.

Copies from your SMRs highlighted to show inservice treatment, as well as a copy of your discharge certificate is enough new and material evidence to re-open the claim and tell them your medical records will reveal this condition is still current  and is still being treated by the VA.

If they award the current condition, then you will need a copy of the past denial and if the condition was at a ratable level when you were discharged I will write a CUE claim for you and post it here.

 "So the question is, can I file 15 years later for a CUE since they had the evidence and didn't apply it? By the way, I still carry that diagnosis and still take medication provided by the VA so all records are current. "

You bet. I found 4 CUEs in my 1998 DIC award letter...all awarded. The most recent CUE was awarded last year.

 

 

 

 

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PS to add...copies of older decision are needed to file CUE on them..because VA wants the actual date of the decision and also we need to know if they gave a NSC rating and what diagnostic code they used, as well as the rational for the denial....in the exact words they used in the decision...and the evidence list they included.

BUT the more I think about this - maybe you should instead re open under 38 CFR 3.156.....

others will chime in here as well and I will go over 38 CFR 3.156 and see if that might be a better way to file.

It is obvious you had this condition in service and still have it.

It would be Great if you can find the older decision and scan and attach it here. (Cover C file #, name, address prior to scanning it)

That would really help us determine what you need to do.

 

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This is a beauty- PTSD  EED 1981.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files5/1639575.txt

I am posting it in the main forum to get some opinions on the 38 CFR 3.156 aspect, to see if others here feel you should raise 3.156 or CUE or BOTH.

 

 

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My first thought, also, was the 3.156 (C), which is the new and material evidence.  That may be problematic, tho, since you indicated they apparently used that evidence on another claim.  Still, VA probably does not have complete records, and you dont know what evidence they used, so file a claim to reopen due to new and material evidence, and submit the evidence "as if" it were new, even tho Berta is right that they probably had the evidence in their paws and did not read it.  

As far as I know, there is no prohibition on applying for 38CFR 3.156 new and material evidence and CUE at the same time and see which one sticks.  

Remeber, the Veteran is not required to be a VA legal expert to get benefits, and the Veteran could award under one or the other.  

The important thing would be to do a great job..do it right the first time.  

Dont guess.  Have all the documents in front of you before you apply.  Cite the document.  For example:

The claim was denied on June 2, 1996 as there was "no evidence of overactive bladder in service".   However, on April 14, and May 4, 1996, the Veteran was treated for this condtion in exams dated that same day.  Cite doctor name or clinic.  

You do the same thing for CUE.  You cite the regulation the vA violated.  If you type it up, perhaps one or more hadit members can edit it for you for clarity.  

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As long as this was ratable in the older denial.( and now when he re opens)...either way it could produce a favorable EED.

Thanks Broncovet!!!! 

If CUE is considered it would be violation of 38 CFR 4.6 ( my favorite regulation)

http://community.hadit.com/topic/60717-the-power-of-38-cfr-46/

'Every Element" that is probative....that includes SMRs, IMOs, blood chem reports, discharge certificates etc etc etc........

The problem is that VA never seeks 'every element' and apparently breezed over this vet's discharge certificate.

My former rep, when he read my 1998 DIC award ( I had just got his POA and dumped DAV for spite...) he knew it seemed wrong and so did I but he told me 1151 claims were 'different' than SC claims.

It took me a while to realize he did not have clue on either DIC or 1151...just like the DAV rep I had but I never appealed it then and he advised not to file a NOD. The award resulted from the battle I had over the wrongful death claim. The FTCA case was easy compared to the crap the VA put me through on the DIC award.

I guess I felt, well I won and am tired of dealing with them....

In 2001/2002 my daughter,she was in the Mil then, had kept insisting I re open for a direct SC death.She was right.But I did not want to even think about it.

So in 2003 it was not only that I filed the AO DMII death claim but also filed the CUE on the 1998 decision, because,in 2003 when I read the decision, I was 100% sure they were wrong.(SMC CUE in our CUE forum)

I had just enrolled into AMU and my USMC Professor was POed that a civilian had enrolled into a Mil school. The homework was hard and he demanded perfection....and that is what he got from me, but between the farm, school and then the re opened DMII claim 

my point here is I know everyone here deals with a lot ,disabilities as well as so much other stuff and we can get so fed up we do not want to take the time or incur the stress of dealing with the VA...

but the real point is ,if you accept the idea that no one, not the VA nor any vet rep is going to take the time to read all of your claims related stuff...SMRS, VA med recs, etc and you do that yourself...

in my opinion, all of that work will pay off.

This initial Marine's post here gave me flashbacks of so many errors VA has made on all of my claims...even on my daughter's only VA claim ( Chap 35) because they 

are not consistently following 38 CFR 4.6, in order to deny.

And I have learned how to shove 38 CFR 4.6 right up their.......

.oops:rolleyes: with SUCCESS!

 

 

 

 

 

Edited by Berta

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