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acesup

To CUE, Or Not Worth It?

Question

Three weeks after I got out of the Air Force in 1974, I spent a few weeks in a VA hospital for Hepatitis (apparently a parting gift from my processing out physical or dental exam).  While there, a VSO filed a claim for me.

The actual filing is not in my C-file, so I'm not certain what exactly he wrote, BUT...

While active duty, my STRs contain numerous medical and psychologist reports of depression, sleep disturbances, fatigue, nervousness, etc. that were not part of my life before the Air Force.  (Some relationship and family issues while I was away from home were the "triggers" that sent me spiraling down the black hole of depression.)

Instead of discharging me for depression, the Air Force hung a "Personality Disorder Not Otherwise Specified" on me and gave me a General Under Honorable discharge based on that.

A brief, poorly written 1974 Decision Letter granted SC for the residuals of Hepatitis, as well as for lumbar spine disability.  It then said that my claim for my "nervous condition" could not be adjudicated because SC for "nervous condition" was not a compensable disabilty under the law.  (I don't have the letter in hand, so I'm working from memory.  I will try to find the actual letter, I do have it.)

There was no mention of a right to appeal.  Upon asking the VSO about the denial and a right to appeal, it was explained to me (in so many words) that the appeals process is for arguing about a denial, but there was no right to appeal a condition that VA legally could not consider as a compensable disabilty.

I wonder if this is an "unadjudicated" issue for which I should file a CUE claim, for the following reasons:

1.  In examining my STRs, VA should have seen the reports/treatment for depression, etc. and considered depression and associated symptoms as the "nervous condition".  At the very least, they should have adjudicated a "sympathetic" claim for depression upon discovering that it existed.

2.  In blanketly stating that a condition would not be compensable under the law,  VA then did failed to adjudicate the issues, and would not have allowed appeal because of their erroneous determination that it was not a valid claim.  I've had a few people say I should have appealed, but there was nothing to appeal.  The claim wasn't denied, it was dismissed as unallowable.

3.  In 2010, a VA C&P psychiatrist opined that, based on STRs and my history since then, my long-term (Dysthymic) Major Depressive Disorder actually began in 1973, during my active duty in the Air Force.  It was then rated at 70% (Effective Date 2009), and reduced to 50% in 2011.  

While I was recently granted (by BVA) TDIU and SMC(s) back to 2009, I still feel that I was wronged by the 1974 decision that my claim was invalid.  Maybe nothing would come of a CUE claim, but I wonder if I shouldn't do it just to make myself feel better about it.  I know that the Air Force did not cause my problems with depression;  it was caused by my brain's response to some bad situations.  However, it felt like once I became a bit "defective", they wanted to dump me like a hot potato, and used a convenient method to wash their hands of me and my problems.

 

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yeah "Nervous condition" is what they SCed my husband for in 1983 and granted it because that was the same year VA realized what PTSD was. His diagnose was PTSD at Newark VA in 1983.

If you can scan and attach here the entire decision ( that was when VA called some claims " not well grounded" )and add the evidence list and any rating sheet- we can better determine if you have valid CUE basis.

"There was no mention of a right to appeal.  Upon asking the VSO about the denial and a right to appeal, it was explained to me (in so many words) that the appeals process is for arguing about a denial, but there was no right to appeal a condition that VA legally could not consider as a compensable disabilty." In essence he was right,part way.You could have stilled appealed it, because many vets have overcome the past Personality disorder BS.

Were you a combat vet, incountry Vietnam?

Whether or not:

I know that the Air Force did not cause my problems with depression;  it was caused by my brain's response to some bad situations.  " It they were bad situations while in the Air Force- they could raise to the level of stressor or warrant another MH diagnosis....as here:

"In 2010, a VA C&P psychiatrist opined that, based on STRs and my history since then, my long-term (Dysthymic) Major Depressive Disorder actually began in 1973, during my active duty in the Air Force.  It was then rated at 70% (Effective Date 2009), and reduced to 50% in 2011.  

Did you fight that reduction?

There might well be a way to CUE the older decision or re-open under 38 CFR 3.156-

If we can see the actual decision we can help more.

Please cover your C file # and name prior to scannng and attaching it here.

The 2010 decision would be good to read too-and can you give us your BVA award Docket #?

The BVA posts their decisions on line,  do not reveal names of the veteran. That too would be helpful to read.

You have had a C & P exam that revealed the SMRs supported his/her diagnose beginning back to 1973.

I feel this has a strong CUE basis but that is only a guess without reading their actual decisions.

I assume you didnt even get a C & P exam for the Nervous condition.

 

 

 

Edited by Berta
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Berta,

I am attaching a redacted version of the 1974 Decision Letter along with notes from my "processing-out" physical (note that the physical clearly denoted "depression" and associated symptoms including "nervousness"), and the opinion part of the 2010 Psych C&P exam (which I found a bit confusing).  There are STRs somewhere that I can't locate right now.  I can't find the 2011 DRO Review Decision Letter that granted Depression after NOD.  Also attaching my recent BVA ruling, but it really has nothing to do with the depression, other than a brief mention of it in the TDIU ruling.  I'll stick it on here anyhow.

You're correct, there was no C&P for "nervous condition".  By way of claiming that "nervous condition" was not a compensable issue, the VA relieved itself of any responsibility to adjudicate it.  As I see it from their standpoint, if it wasn't something they would consider as a valid compensable disability, then there were no grounds for appeal either.  Kind of a "Catch 22" situation, from my point of view.  

However, since medical and psych visits for "Depression" were part of my records, I think they should have considered a sympathetic claim for Depression.  

When I look at that 1974 Decision now, I think "What if they'd told me that my back disability was an issue that could NOT be compensated by VA?"  And the answer is, I guess I would have believed them, and since there was no mention that an appeal was a possibility, I would have considered my claim to be closed for lack of any legal standing.  

Note for younger veterans:  In 1974, virtually nothing was computerized.  All paperwork was typed on a typewriter or hand-written.  There was no such thing as a personal computer.  Up until approximately the last 20 years, there was no such thing as an Internet site where one could find VA claims information, or a forum that discusses the science and politics of VA claims.  Knowledge of the VA claims process was clinched tightly to the chests of VA people and VSOs, and was not shared with the masses.  If you had service connected disabilities, finding the way to get VA Comp for them was like playing poker.  (Of course, in some respects, that still can seem to be the case.)

P.S. Not a Vietnam vet, just VN era.  Had I not joined the USAF in 1972, I probably would have been; I was 19, and my Draft Lottery number was 19.  The draft ended 4 months AFTER I joined.

BVADecisionLtr2018Redacted.pdf

VADecision1974.pdf

VA2010MDDC&Pexcerpt.pdf

Edited by acesup
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The military and the VA worked hand in hand together to write DD 257s for General Discharges. The trick was to call it a  preexisting condition (personality disorder) that manifested in service. Since it was preexisting, it could never qualify as a true psychological disease-and therefore compensation. I've turned over a bunch like this to get SC but never could call it CUE. It's too long ago, you did not appeal it and it's basically moot. The military and the VA made sure it was called a personality disorder. I, too, have one. Antisocial w/ passive aggressive tendencies. I was booted at 3 yrs +4 months.I don't reckon it had anything to do with two tours back to back in country and 3 Vs for valor. Purely a coincidence. 

I'd say you were wasting your time trying to win it but it all hinges on the records. If they forgot to issue a SOC in 1974 in relation to a filed NOD, then it's still viable. Every case is unique. Your claims file will be the last word on the subject. It's always worth while to investigate. You may have a chicken dinner winner and not know it.

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I feel there might be  a basis for CUE in the 1974 decision-----might be-

or cause for filing under 38 CFR 3.156.

Not only for the personality disorder BS but also something else-

Did any rating sheet come with that? Do you have a copy of your C file?

I always say here from time to time that the worst CUE of all is the one never filed.

It will take me time to do some research on that 1974 decision. 

Your Remand and BVA award letter is Fabulous!!!!!!

Send them anything you can, if possible, that would help with the remand.

This really gets me Outraged, when I see BVA awards, ( there are Years of thousands of them at the BVA,) for claims that could have been awarded at the Regional level or Cued at the regional level, to gain a proper award -sooner than later.

 

 

 

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That dog won't hunt. If you felt the nervous condition should have been appealed as a more serious psychiatric disease to include "depression", the way to do that was to file a NOD-even in 1975. Just because you were told not to file or the futility of filing a NOD, your failure to do so cemented the finality of the claim. A CUE assault would run aground when it becomes two equally compelling versions of how the evidence is/was evaluated. That would result in denial. However, I concur with Berta, as always in that the worst CUE is one never filed. I've floated a few for my clients and most are still in the pipeline. That's the problem with being an optimist.

The only way to overturn this one would be with a contemporary psychiatric evaluation in the evidence in 1975 that unequivocally stated you had a major mental disorder diagnosed beyond the shadow of the doubt. You have two different opinions- PD and depression. Depression, as a stand alone diagnosis, is not, in and of itself, a psychiatric disability that rises to the level of a major mental disorder. Read the old DSM 2 to get a better understanding of how the old boys thought on that  bent brain subject in 1982. That's when they "invented" PTSD etc.

 

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