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Lemuel

Clear and Unmistakable error?

Question

  • I have a BVA decision.  Partial grant, TDIU back to July 2009.  Partial remand to consider back to first application date October 1987.  Partial denial of tinnitus back to July 1974 from October 1987.  I never claimed specifically tinnitus.  My claim was for loss of hearing (hearing problems which were written down by the clerk as hearing loss) in July of 1974.  Tinnitus was granted in October 1987 on a review of the record by an RO.  I believe it should have been granted back to the first claim for hearing as hearing is a system.  Part of the difficulty hearing is tinnitus and part a high frequency hearing loss.

Also denied was compensation for the wrist because I didn't say specifically the thumb.  My contention is that the wrist and the hand are a system.  The surgery fused the proximal phalange of the thumb to the carpal bones (used to be greater and lesser multangular but names have changed.) It is a combination loss of use.  The thumb and wrist.  Dorsa flexion of the wrist is not compensable under the schedule but the loss of use of the thumb which wouldn't be a loss if I had full wrist dorsa flexion.  Both claimed in 1974 as "residuals of wrist surgery" to repair an injury.  A net 10% increase in back pay.

Do you think an attorney could get a favorable decision?  My current Rhode Island VA accredited attorney doesn't want to spend the time doing it because of the difficulty.  Because I didn't specifically claim the items which I claim are inclusive in the claim and should be granted under CUE.

The adjudicator in Hawaii who did my 1974 claim did a thorough investigation of my accident injuries for "in the line of duty, not due to misconduct."  And granted 0% for hearing, 0% for wrist injury residuals, and 0% for residuals of facial injury and surgery.  No examinations were done.  It turns out that in 1985 I was diagnosed with traumatic brain disease, 8045-9304, and rated at 30%.  My employment record shows that I had continuing problems following discharge.  My contention is that this is a CUE by the adjudicator for not following relative 38 CFR  articles 4.1; 4.2;4.3; 4.6; especially 4.10; & 4.13; .  But because I had no examination I have only the 1969 inpatient records and a couple of 1969 and 1970 Enlisted performance records to prove CUE.  Can it be done?

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Cue depends on 3 basic points.

You have an unappealed decision.

It contain legal error(s).

Those errors manifested an altered outcome- meaning if the errors had not been made the VA would have granted and paid you compensation.

CUE however 

is like the Watergate Question:' what did the president know and when did he know it?'meaning what did the VA know and when did they know it?

And that means the  evidence must have been established at time of the alleged CUE decision., and in the VA's possession.

VA cannot commit a legal error if they do not have the evidence in their possession (at time of the decision being cued).

A CUE claim also should contain a copy of the decision the CUE is being filed on.

We have considerable info on CUE in our CUE forum.

Also the CUE rests on the regulations in place at time of alleged CUE.

 

 

 

Edited by Berta
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Berta, then "CUE" applies all three instances, except for conflicting reports.  Obviously my left wrist is not WNL but has been reported as such.  And some of the audiogram reports didn't include tinnitus.  But the overwhelming majority do including almost all of the Navy audiograms.

There is also clear evidence reported in the inpatient nursing notes of complex partial seizures during my 30+ day hospitalization at Oakland Naval Hospital in 1969.  Although the records weren't in the hands of the adjudicator in Hawaii in 1974 they were considered in the VA's hands by precedence.

So I have an argument on all three items.  I don't see CUE mentioned in any of my claims although I did mention them in the BVA hearing in 2015.  I understand from what I've seen so far that I have to file a specific CUE claim citing the specifics for all 3.

The veteran isn't required to be specific in his claims.  Just saw that in 38 CFR chapter 3.  So my general claims are sufficient.  It was the adjudicators responsibility to find the evidence in the file and address it.  Had he done so he would have done the examinations required and concluded differently.  All he had at that time was my military medical file, which, including the inpatient records, are conclusive I believe.

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It seems I'll have to wait for the remand to be finished for a finale decision except for the denial of the earlier date for tinnitus.

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