Hearing Officer Makes Medical Determination

[desertshield]

If at a RO hearing, the hearing officer determined that a Veteran's previously unknown medical condition, i.e. heart arrhythmia or hypertension, was found so soon after entry, ( about 2 weeks ), onto active duty that in their opinion it couldn't have started in military and therefore denied the claim on that basis, have they in essence made a medical opinion and therefore something that could be contested as a CUE?   

[broncovet]

You may be on to something, there.  However, we dont even know that raising the standard of review to the onerous "Cue" standard of review is even necessary.  

My DRO determined that my hearing loss was "too long" since military service, and therefore denied it.  

I appealed, pointing out the only competent exam I got showed "hearing loss was at least as likely due to military service".  

I got the bogus denial overturned, but I did not have to even try the CUE standard of review, a simple appeal was sufficient.  

Everyone always hollers "CUE" when CUE should be the last resort..after you have tried everything else.  After all, wasnt it difficult enough to win your claim when you have the benefit of the doubt, (which goes out the window with CUE?)  

You have to allege the regulation in which the VA erred in CUE, and which one is that?  Have you tried reopening due to 38 cfr 3.156, (new evidence)?  

You would submit as new evidence your entrance into service, which showed you did not have the malady.  

You can also re apply, and then later dispute the effective date, with an appeal, that is, if the VA gets the effective date wrong.  

The CUE standard of review is the "highest" bar to jump over in all VA law.  Why make it that difficult, and just lower the bar to make it easier for you to jump over.  Isnt winning your benefits challenging enough without raising the bar to the maximum?  Mine was.  

All this said, Berta has had good luck asking VA to CUE themselves.  However, Berta is an expert and knows VA regs forward and backwards.  She could have also still won in appeals, but she has gotten her VARO to sometimes work her CUES quicker.  

Still, Berta will be the first to point out she still files a NOD within a year..even if her CUE is pending.  

Does you VA decision state that it was denied due to having the malady prior to service, because you got the disease "just 2 weeks" into service?  

If they said that in writing, well, then consider attacking the decision with CUE, but make sure your i's are dotted and T's crossed first.  

Edited January 20, 2018 by broncovet
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[Berta]

Well put advice Broncovet- and this might well be a 3.56 situation-

not enough info here to know.

I did have fast luck in some cases with CUE but 2 of them took 7 or 8 years , were denied and set for BVA transfer and then I asked the Nehmer VARO to decide them as each one was continugent on a proper AO IHD award, and both were filed prior to my AO IHD death claim, and were still sitting at my VARO.

It took mere weeks for Nehmer to handle the AO IHD claim and award those CUEs.

My evidence was impeccable- but no one at my RO AOJ would read it, or even read the regulations they obviously broke.Philadelphia Nehmer could read.

CUE should be a last resort tactic in most of the CUE questions we see here.

" have they in essence made a medical opinion and therefore something that could be contested as a CUE?"

 

As Broncovet stated: "Does you VA decision state that it was denied due to having the malady prior to service, because you got the disease "just 2 weeks" into service?  

If they said that in writing, well, then consider attacking the decision with CUE, but make sure your i's are dotted and T's crossed first."

It is the exact wording itself of decisions, along with VA rating , that holds the possibility of whether CUE exists or not.

 

[broncovet]

Thank you for the kind words, Berta.  Wow, a compliment coming from YOU.  You are the best.  

Many Vets "run to CUE", and raise the bar unnecessarily so.  The "bar" to obtain benefits is already challenging enough that it took me more than a decade to jump over it.  I won benefits without a cue.  The only cue I filed was quickly denied.  It was denied because I did not allege a specific error they violated.  (dumb on my part, but I know better now).  

I think Vets mistakenly do not understand cue, which is a "rare specific kind of error".  More importantly, its a "standard of review".  I see no reason to raise the "standard of review" for Vets, UNLESS THAT IS THE ONLY WAY.  Remember, too, CUE is "all about" effective dates, and could/should be used to win an EED, most of the time after benefits have been won using other tools.  You see, if "effective date" was not the issue, it would be simpler and easier to simply apply again "holding onto" that all important "benefit of the doubt" which is eliminated in CUE.  

[desertshield]

Dear Berta and broncovet, Thank you for the excellent advice. Like a VA doctor told me years ago...if it ( i.e. a medical condition ) was first discovered on active duty, it should be considered service-connected.