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Mike 44

IS CUE FOR BASIS IF RO MADE SEVERAL TYPOS ON RATING DECISION?

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RATING DECISION MARCH 4, 2002

 

SERVICE CONNECTION FOR LEFT ANKLE FRACTURE DENIED.

FACTS: SERVICE MEDICAL RECORDS FROM MARCH 20,1993 THROUGH JANUARY 20,2000, SERVICE MEDICAL RECORDS ARE NEGATIVE AS TO AN ANKLE FRACTURE, TREATMENT OR COMPLAINT OF THE SAME.

VA JOINTS AND GENERAL MEDICAL EXAMINATION DATED AUGUST 7, 2000 INDICATES THAT THE VETERAN REPORTED ON NOVEMBER 1994, WHILE JUMPING OUT OF AN AIRPLANE DURING AIRBORNE SCHOOL HE HAD AN INVERSION INJURY OF THE LEFT ANKLE WITH FRACTURE, HE WENT TO SICK CALL AND HAD TREATMENT FOR THREE WEEKS WITH AN AIR SPLINT.

IT THEN STATES. XRAYS OF RIGHT!!!! ANKLE INDICATE NORMAL ANKLE JOINT, ACCESSORY OSSICLE VS OLD AVULSION FRACTURE IN THE SUPEROANTERIOR PORTION OF THE TALAR BONE.

 

UNDER ANALYSIS,  SERVICE CONNECTION FOR LEFT ANKLE IS DENIED SINCE THIS CONDITION NEITHER OCCURRED NOR WAS CAUSED BY SERVICE.

THEN BELOW....IT STATES

      THERE IS NO INDICATION IN THE VETERANS SERVICE MEDICAL RECORDS OF A RIGHT ANKLE FRACTURE!!! FIRST INDICATION ARE THE XRAYS TAKEN AT THE VA HOSPITAL ON AUGUST 7 2000 4 MONTHS AFTER DISCHARGE FROM SERVICE.

 

FIRST OF ALL I FILLED MY INITIAL CLAIM MAY 9, 2000..ONE MONTH AFTER DISCHARGE...OF COURSE CLAIMING LEFT ANKLE FRACTURE.

SECOND, THEY STATE ABOVE IN TWO OCCASIONS IT WAS MY RIGHT ANKLE

THIRD. I TRIED TO LOCATE MY C&P EXAMINATION THROUGH RELEASE OF RECORDS WHERE I ALWAYS GET THEM AND WENT ON THREE DIFFERENT OCCASIONS AND WAS TOLD THERE IS NO RECORD OF THE AUGUST 7, 2000 VA JOINTS AND MEDICAL EXAMINATION IN THE VA CPRS FILE!!! FOR THAT MATTER THERE ARE NONE ON RECORD FOR THE YEAR 2000.

NOW I DO HAVE A COPY OF THE XRAY TAKEN  DATED AUGUST 7 2000 BUT C&P EXAM IS MISSING   THERE IS NO MEDICAL OPINION STATED ON MY RATING DECISION..NO RATIONALE..NOTHING.

SO FINALLY MY QUESTION IS DO I HAVE GROUNDS FOR A CUE CLAIM BASED ON THIS EVIDENCE, ERRORS AND MISSING C&P EXAM?

YOU KNOW I WAS SO YOUNG AND STUPID WHEN I FILED MY ORIGINIAL CLAIM...GOT A COUPLE OF SERVICE CONNECTIONS AND LEFT IT AT THAT....IGNORANT TO BENEFITS AND VA LAWS AND NOT LOOKING OVER PREVIOUS CLAIMS THOUROUGHLY  UNTIL THIS PASSED YEAR WHERE I GOT CANCER(SERVICE CONNECTED) BUT BEAT IT TWICE  , BUT IT GAVE ME THE OPPORTUNITY TO START PULLING OUT OLD FILES AND SEEING ERRORS!!

I WOULD LOVE AND APPRECIATE SOME FEEDBACK IF ANYONE HAS ANY OR EXPERIENCED A SIMILAR  SITUATIONS OR HAVE CITATIONS WHERE SOMEONE WON CUE FOR THESE TYPES OF RO ERRORS..THANKS TO EVERYBODY ,,THIS FORUM AND WEBSITE IS AWESOME.

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Cue is based on a leagal error. Evidence weight or typos will not work. You must find something within the regs that they violated or mis rated.

 

J

 

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HOW ABOUT AN NOD? WOULD THAT WORK TO GET THE ANKLE SERVICE CONNECTED? IS THE MISSING C&P EXAM IN THE VA CPRS SYSTEM A GOOD LEG TO STAND ON?

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Ditto what @jbasser said 

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Cue is based on a leagal error

 

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 sorry what i mean was reopening the claim with the evidence above, and would it hold good weight to get service connection?  and thank you jbasser for your answer, i appreciate it

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Dont file a CUE based upon spelling errors.  If you read about CUE, you will find the error must be "outcome determinative" and a mis spelling does not change the outcome.  

You almost NEVER want to file a CUE when a NOD will do.   You make it harder on yourself..the claims process is already difficult enough, dont make the "standard of review" higher.  If you think of CUE as a "standard of review" it will help you.  The CUE standard of review is the highest, most restrictive.  Take the much easier "benefit of the doubt" which includes "equipose".  Equipose means when there is a balance of positive and negative, the "tie" goes to the Veteran.  However, BOD and equipose go out the window with CUE.  

Now, the VA rating "the wrong" ankle is a serious error, and there is even a chance that this error rises to the Cue Standard of review.  However, just because I COULD (maybe) walk to the VA, does not mean I necessarily should do that.  I think I will make it much easier and take my car.  I probably would get exhausted and maybe even hit over the head as there is a bad neighbor hood between me and VA.  

So, I will take the car every time.  If I need exercise, then that is good, but Im not walking to VA for that.  

In a similar way, dont file a Cue when a NOD will do.  There is a provision, 38 CFR 3.156 "new and material evidence".  If VA did not have all your evidence, then you can submit it and get backpay.  

File a NOD, on the proper form, and submit it within a year.  

If its not corrected at the DRO review, (and you get a SOC), then file an I9 appeal to the BVA within 60 days of the SOC.  

Keep your BOD and equipose.  

Explain in your NOD, that the wrong ankle was adjuticated.    Berta has had good luck filing a Cue in such cases, but she will agree, you should ALSO file a NOD within a year if you have not heard anything back on the CUE.  

If you do file a Cue, it should be on the wrong ankle was adjutciated.  

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