Am I wasting time filing a CUE dating back to 1976?

[hollywoodnc]

Hello ALL!...

It's been a while since I've posted here.  Nice changes to the web site.

Anyway...

In 1975, I enlisted in the Army. I went in with three Knowles pins, surgically implanted in my left hip, which was performed in the summer of 1970.

Prior to enlistment, I had NO issues with this hip.  I had full ROM (as this was also documented at AFEES), NO PAIN, ETC.

During my time in basic training (while speed marching in sand one early morning), I hit a divot in the sand, and suffered a (what I believe was) a compression fx.  It was extremely painful & I had dropped out of the ranks due to it.

A visit that day to the dispensary, showed that, one surgical pin was protruding out into the joint space.  This is the exact written statement made by the examining physician.  He recommended that I be discharged.

8 months pass and my discharge orders are submitted, classifying me as "Medically Discharged" w/severance pay.

Immediately afterwards, I applied for a rating with my local VARO and they schedule me for examinations to determine the extent of my disability. 

The VA doctors determine, with this exact wording...

"Pins Working loose"...

"Atrophy"

"Avascular Necrosis"

"Left Leg 1/2" shorter than right" (although this is NOT compensable, it contradicts what AFEES stipulated; that BOTH legs measured 37 inches)

Back then, not knowing that I was entitled to a copy of my medical files, I had NO CLUE that I had all of these statements made by doctors.

Anyway, the VARO rendered a decision in 1977, awarding me 10% (Coded w/5010-5003; SC 38USC 331 {AGG PTE}; 10% FROM 4/76; Res. of Fracture Left Hip w/Arthritis).

There had been NO MENTION of the statements made by the examining physicians in the determination, regarding the above mentioned ailments, yet Title 38 awards a rating for each, except for "surgical pins".  Not knowing anything about my condition, the laws or my entitlement to documents, I accepted the rating as verbatim and ASSumed this was honestly decided upon, by competent officials.

I discovered years later that this is not the case...

In 1977, I also had surgery to remove the pins, only to have an incompetent "Quack" botch the surgery (which led to my 2002 filing of an 1151 claim, then an FTCA Case in Fed. Court).

In 2002, I managed to get copies of my entire file and pursued a CUE claim involving the "Under-rated claim" dating back to the original 1977 Clear & Unmistakable decision.  After all, the raters failed at reviewing the entire write-up made by their own VA doctors.

Even though I made multiple mentions in my constant filings, for some reason, it keeps getting swept under the carpet?!  They are also referring to calling it "Residuals", as if it was already decided upon as a "Bundled Package".

I DO know that this under-rating is TOLLING, being that it was never addressed in the 1977 decision.  In effect, isn't it still an "Open Issue"?

Tolling of Statutes of Limitations Law and Legal Definition

Tolling of statutes of limitations refers to the situation when running of statutes of limitations is suspended.

The U.S. Supreme Court has established a two-part test to determine whether a petitioner is entitled to equitable tolling of the statute of limitations. Generally, a litigant seeking equitable tolling of the statute of limitations bears the burden of establishing that:

a. S/he has been pursuing his rights diligently; and

b. some extraordinary circumstance stood in his way. [Pace v. DiGuglielmo, 544 U.S. 408, 418 (U.S. 2005)].

Since Discovery (2002) I have pursued this Under-rated claim diligently...

AND

(Some may question) An "Extraordinary Circumstance", such as my "Ignorance" in not knowing that I was entitled to copies of my entire file at the time along with my ignorance in knowing the laws (Title 38) at 19-20 years old, PLUS, My inability to research online (in 1976-77, there were NO computors or internet to research as we have today).

 

In 2003-04, I found a case law, where as the BVA  awarded a Veteran (I believe it was in 2002) with VERY SIMILAR ailments 60%.  He to, had a "loosening of pins", "Asceptic Necrosis" & atrophy?!

After a total hip replacement, the Veteran was downgraded from 60% to a 30% rating.  After a hearing, the VA awarded the Veteran with a 50% rating.  This is the heading of the Case Law:

IF permissible, does anyone know the Plaintiff/Claimant in the Court Case? OR Is this hidden due to "Privacy Act"?

Citation Nr: 0306080    
Decision Date: 03/31/03    Archive Date: 04/08/03

DOCKET NO.  95-42 499   )       DATE
        )
        )

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania

THE ISSUES

1.  Entitlement to an increased rating for residuals of fracture of the right femoral head, evaluated as 60 percent disabling from June 1994 
through May 17, 2000.

2.  Entitlement to an increased rating for residuals of fracture of the right femoral head, status post right total hip replacement, evaluated 
as 60 percent disabling from July 2001 through March 2002 and 30 percent disabling since April 
1, 2002, to include the issue of whether the rating reduction  
to 30 percent was proper.

3.  Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:       The American Legion

WHY is my claim different?  Even though the bundling of ailments in THIS case is used (Residuals), what makes my case different?

The Bottom Line...

Is there enough info here to determine if I have a "CUE" claim? 

Should the VARO awarded me a higher rating in their 1977 decision as they did with the Case Law above?

 

Thank You in Advance for your comments/opinions on this matter!

Bruce M. 

Edited November 26, 2017 by hollywoodnc

[Lemuel]

Can't answer.  I'm in the same boat back to 1988 at least with a lot of others.                                                                     

[Berta]

What was the outcome of your 1151 case and the FTCA case?

We have considerable info here on CUE claims.

Alex (Asknod), myself, SPO4 and Allan 2005 are some  of the fairly recent CUE  winners...

I think I have filed more CUE claims than regular claims...a decision I got in 1998 had 4 CUEs in it...the last one was resolved maybe a little over a year ago.

BUT to succeed on CUE, one must have a copy of the decision being cued, because they will need the exact date of that decision, and it is the actual decision, in VA's rhetoric or rating sheet, where the  legal eror ocurred and where CUE can be found....if a CUE occurred. 

Lately we here have been getting questions from new members on FTCA, 1151, and CUE- three areas I have succeeded in and certainly have some expertise- as well as other members here.....

BUT all of my awards came from a thorough study of the laws and regulations at time the alleged CUE occurred and I have posted in the CUE forum, my own experiences.....along with some other  CUE winners from the BVA web site.

Same went for my 1151 and FTCA case.....lots of reading had to be done first, and my evidence had to be impeccable.

You asked:

"Is there enough info here to determine if I have a "CUE" claim? "

No.......we need to see the actual deision. Both denials and awards can often contain CUE.

I asked someone recently to scan and attach a very old decision they felt had a CUE in it.

They gave us a run down of what the decision said- and I do believe what they posted -

but that does not help us to help them....

In my cases it was the actual words of the VA  and their rating sheet , I used to base my CUEs on...

and their evidence list for some CUEs.

I have put plenty of info into the CUE forum...some winners I posted from the BVA went back decades...

If you can scan and attach the older decision you feel might contain CUE, cover your C file and # prior to scanning it.

In the 1998 decision, I filed 4 separate CUEs on, I attached a copy for that  1998 decision for each CUE.

 

 

 

[Berta]

here is a CUE back to 1946:

and this one:

https://community.hadit.com/topic/2357-cue-granted-1954-decision/?page=2#gsc.tab=0

and this one

https://community.hadit.com/topic/52878-bva-cue-granted-unusual-eed-claim-over-50-years/#gsc.tab=0

Nothing is impossible.

Plenty of info on CUE in our CUE forum.

 

 

Edited November 26, 2017 by Berta

[Lemuel]

Thanks Berta.  I'll redact and post my many rating decisions and two BVA decisions.  No errors in the last BVA decision that I have found but the first one appears to have ignored relevant evidence, a second page of my part time employer's statement, on careful reading.

It will be awhile because I'm working on the filing of the FTCA claim and tolling its SOL in District Court which is pressing.  CUE doesn't have an SOL that I know of.

I'm going to save those links for later.

[broncovet]

I agree with Berta.  No offense meant, but, for us to determine if any errors rise to the level of CUE, we would need to see copies of the decsions as well as pertinent medical records.  

You are skating on "thin ice" as far as cue goes.  First, make no mistake a disability percentage is a "judgement call" and CUE does not substitute 1 judgement call for another judgement call.  

If the original rater had even "some bases" for his decision, then it will stick.  Others could have seen it differently, but he was the guy with the striped shirt.  As in football, you can "challenge the call on the field", but only up until the next play.  They become "final" as soon as the ball is snapped for the next play.  In VA, you have to "challenge" the call within a year or it becomes final.  Your reasoning for not timely filing a nod are irrelevant.  

Even tho "judgement calls" are not CUE, its still possible that the VARO made errors that rise to the level of CUE if they did not fully comply with applicable regulations at that time.  

(For CUE to suceed, it is based on the regulations at that time, not now).  We can not say whether or not the VA complied with all regs or not.  

I always use Cue as a "last resort".   

Its generally much better to NOT accelerate the standard of review to the cue level unless you have exhausted all other means.  

Some that are often overlooked, which can and do result in an earlier effective date without CUE are:

1.  38 cfr 3.156 b.   If you submitted "new and material evidence" Within the appeal period, (that is, with a "pending claim"), then the VA would need to reopen, and, if benefits are awarded, the effective date will be when you first applied or the facts found. 

2.  38 cfr 3.156 c.  New service records.  This can net you an eed anytime, regardless of when you submit the new service records.  

[hollywoodnc]

16 hours ago, Berta said:

What was the outcome of your 1151 case and the FTCA case?

We have considerable info here on CUE claims.

Alex (Asknod), myself, SPO4 and Allan 2005 are some  of the fairly recent CUE  winners...

I think I have filed more CUE claims than regular claims...a decision I got in 1998 had 4 CUEs in it...the last one was resolved maybe a little over a year ago.

BUT to succeed on CUE, one must have a copy of the decision being cued, because they will need the exact date of that decision, and it is the actual decision, in VA's rhetoric or rating sheet, where the  legal eror ocurred and where CUE can be found....if a CUE occurred. 

Lately we here have been getting questions from new members on FTCA, 1151, and CUE- three areas I have succeeded in and certainly have some expertise- as well as other members here.....

BUT all of my awards came from a thorough study of the laws and regulations at time the alleged CUE occurred and I have posted in the CUE forum, my own experiences.....along with some other  CUE winners from the BVA web site.

Same went for my 1151 and FTCA case.....lots of reading had to be done first, and my evidence had to be impeccable.

You asked:

"Is there enough info here to determine if I have a "CUE" claim? "

No.......we need to see the actual deision. Both denials and awards can often contain CUE.

I asked someone recently to scan and attach a very old decision they felt had a CUE in it.

They gave us a run down of what the decision said- and I do believe what they posted -

but that does not help us to help them....

In my cases it was the actual words of the VA  and their rating sheet , I used to base my CUEs on...

and their evidence list for some CUEs.

I have put plenty of info into the CUE forum...some winners I posted from the BVA went back decades...

If you can scan and attach the older decision you feel might contain CUE, cover your C file and # prior to scanning it.

In the 1998 decision, I filed 4 separate CUEs on, I attached a copy for that  1998 decision for each CUE.

 

 

 

On the 1151 claim, which has no SoL, it was DENIED.  I don't recall the EXACT reason, but I believe it had something to do with not allowed to receive double payment for the same disability.

On the FTCA, it to was DISMISSED W/PREJUDICE, even though I used "Irwin" (equitable tolling) and the "Continuous Treatment Doctrine". 

At FIRST, an Obama appointed Judge scheduled me w/a Pre-Trial hearing.  A Bush appointee quashed that hearing, w/a Decision, after I filed a Motion to Continue (because I couldn't afford a plane ticket at that time).

I will make a copy of the 1977 decision & prior Dr. notes (w/personal stuff covered) and submit it here, sometime before tomorrow.

 

Thank You Berta for your response and Expertise!