To CUE, Or Not Worth It?

[acesup]

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.

 

[paulstrgn]

@Berta I am always amazed how you have so much knowledge with these VA issues. I am more amazed that you have time, you sound like such a busy woman with your church. On a separate note I do believe that prayer works, I will prayer for your pastor and his daughter. This may sound selfish, I pray especially for you that  God keeps you strong and healthy for you are such a help to all of us veterans!

[Berta]

THANK YOU! for those Prayers for Debbie and me-Yes God has helped me stay healthy to help our nation's vets- my husband made me promise to continue to do that the day he died-he never had to ask----

Our Nation's veterans are always on our Prayer list-and I often bring up other VA vet  issues we need to pray for at our Prayer Warriors meeting each week. Many members are veterans and we have many of their adult children are in the Military as well.One couple ( both  Marines) just told me their son is going to join the CORPS when he graduates from high school. And inspite of the problems my daughter saw her dad and me have , after he died, with the VA, she is a USAF 7 yr vet ( Top Secret Intel) -works for DOD NSA and has her 20 year pin- 7 yrs Mil and over 13 at NSA and she is not even 40 yet.

She bought back her military time, as the two Marines in my church are doing now through their employers.-

I dont know how that works- she explained it to me but I still dont understand it-

but it would be a good article to post here sometime.

 

 

[Berta]

Acesup- do I understand the VA never sent you an Appeal form?

Did you move around that time?

Also do I understand the nervous disorder claim was filed within one year of your discharge?

Seems to be the case.

There are many nervous disorder CUE claims at the BVA- but many were denied for good cause- I have only had time to read a few of them- so far-

Th 1974 decision says they enclosed the 21-4107 Appeal form- that does not mean they sent it- my VARO failed to enclose the 5103 waiver form for my last claim. They tried to say it was attached to their letter- I still have the stapled letter. No attachment at all.That is what used to be our VCAA rights.

I  emailed the Director to get it-how many times do they do that to others- who never know they should have got it and needed to  respond to it.

When I got it they put both of my issues on it, and listed on the back the evidence I had sent for each claim, and the VA guy who made the error in the missing enclosure called me up and verified every piece of evidence I had sent them, for both claims- and never adjudicated one of the claims properly- --

presently all 'being worked on"- yeah right-like my IRIS complaint.

It was the second VCAA error they made- the first one, BVA agreed was an error ( I asked for remand on that basis ) but moot because they awarded anyhow.

 

 

 

Edited December 20, 2018 by Berta

[paulstrgn]

When a vet buys back their time (when they have a federal job) it is basically adding in their military time to their federal time. If a vet was in the military for 7 years and have been working for the federal government for 6 years and they buy that time back then they would have an additional 7 for the military time and 6 years of federal they would have 13 years. I hope that makes sense.

[acesup]

Berta,

I do have a letter where some psychiatrist I never met claimed to have assessed me with Personality Disorder N.O.S., which was used as the basis for my discharge, and it was noted on my DD214.  (BTW, I am also attempting to put together a request to Board of Corrections of Military Records to have my discharge upgraded and the "Personality Disorder-N.O.S." label removed from the DD214.  I'm 65 and not employable, and the General Under Honorable doesn't cause me any problems, I just would like it changed because I think it was wrong.)                               

I did not, to the best of my knowledge, receive an appeal form in 1974.  I did hand-write a letter that was apparently considered an appeal, and they subsequently gave me 10% rating for my lumbar spine plus 10% for "residuals of Hepatitis A".  

I did not ask for them to reconsider the "nervous condition".  In my opinion, they had already made it quite clear in the Decision Letter that it had not been adjudicated, and would not be adjudicated, because it was not a condition which could legally be compensated by VA.  (I'm pretty sure it was the same response I'd have gotten if I tried to claim freckles or male pattern baldness LOL.)  Any of the other conditions had been considered, then denied, because they were considered disabilities that the VA could legally compensate.  

Maybe I'm wrong, but I think the most obvious CUE in this decision was that they said "nervous condition is not a disability under the law for which compensation could be paid."  That statement in and of itself slams the door on an appeal, because they are saying that no matter what, it is not a disability that they could/would legally adjudicate and compensate.

The second CUE, as I see it, is that they had the records that said "depression", so they should have either inferred that "nervous condition" meant/included depression, or they should have sympathetically opened and adjudicated a claim for depression.

Of lesser importance, in my opinion;  even though the letter refers to an enclosure of VA Form 21-4107, there is no mention of a right to appeal anything.  I doubt I can prove that there was no enclosure of an Appeal Form, though.

I will dig through my enormous C-file later today to see what all I can find that pertains to this, and will redact and scan it.

Thanks for taking the time to examine my case, I really value your opinion and input on this CUE subject (of which I know virtually nothing)!

Edited December 20, 2018 by acesup
misstatement

[Berta]

Acesup said:

" (BTW, I am also attempting to put together a request to Board of Corrections of Military Records to have my discharge upgraded and the "Personality Disorder-N.O.S." label removed from the DD214"

That might only take a submission of a DD 149 ( available here under a search-) as you were granted SC 70% for Major Depressive Disorder-and you do have General with Honorable Discharge- nothing to be ashamed of- that is far better than bad paper 214's-

I was thinking of the DD 149 at 5 AM-could not wait to work on this for you- and I will be here on the board today- primarily to search some of my posts- and will focus solely on the CUE until I get it done.

I am seeking a way to utilize the essence of  Clemons V Shenseki (by backtracking it ) and waiting for the new VBM  I ordered- to arrive- just in case they have something in it that will help, but I am more positive than ever that this is a valid CUE.

Also-

"In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992)." A COVA decision I believe.

But you HAD a valid disability as noted in your SMRs, and it was subsequently was awarded....DUH.

Note to me:

"In contrast to Ingram, which addressed the scope of a claim when it is first filed by the claimant, 21 Vet.App. at 236, Boggs relies upon a diagnosis to define the scope of a claim only retrospectively–after there has been a finding of fact based upon competent medical evidence. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Boggs, 520 F.3d at 1337. However, the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits." Boggs V Derwinski as within Clemons:

Clemons states:

"For purposes of the claim and its adjudication, it matters little that the appellant believes his symptoms should be diagnosed as PTSD if the medical evidence establishes that his symptoms are actually something different. And, the fact that the appellant may be wrong about the nature of his condition does not relieve the Secretary of his duty to properly adjudicate the claim."   They elaborate on that more- meaning a veteran with a MH issue cannot be expected to claim the specific issue:

as in your case the claim was for "nervous condition" yet subsequently SCed for depression.-because someone at the VA actually read your SMRs and a MH doctor opined favorably, (who also read the SMRs I am sure).

My past posts here on Clemons give the best rendition of Clemons- but I need to read basic VA case law in 1974-----and this also might be a 38 CFR 3.156 issue-----

You stated:

"Maybe I'm wrong, but I think the most obvious CUE in this decision was that they said "nervous condition is not a disability under the law for which compensation could be paid."  That statement in and of itself slams the door on an appeal, because they are saying that no matter what, it is not a disability that they could/would legally adjudicate and compensate."

I agree with you 100% there- and somewhere I have my husband's award letter from VA dated 1983-due to his service 65-66 Vietnam, that granted 30%  SC for "nervous condition" , yet was diagnosed as PTSD( the shrink who diagnosed him , was inCountry Vietnam, and as my husband waited to be arrested ( he tried choked an Oriental man, who denied his VA loan application) the shrink  also who was their VAMC Director, pretended to be a  combat vet too  and drew my husband out to reveal a horrible volunteer job he did in Vietnam.This same shrink was at that scene, because some Marines needed his help immediately, and only those who were there knew the details and he wrote a Buddy statement  for the claim that was filed the same day.

I dont know when the "nervous condition" was changed- He Stayed at 30% SC PTSD but filed a claim for higher rating and after he died I proved he was 100% SC P & T for PTSD. 

My point is there are other claims for "nervous condition"at the BVA, that were adjudicated beyond any brief sentence you got in the 1974 decision.I a trying to  find one within the 1970s, but BVA only goes back to 1992 decision.

In any event I will give you 100% of my ability on this issue and will focus solely on it for the coming days-

I might have asked- forget- have you obtained a copy of your C file?

When you got the SMRS did you also get,  due to your SF180, a copy of your 201 Personnel file?

I do not know how this all will "FLY" but I assure you I will give it the Best Legal WINGS  that I can assess and cite for the CUE claim.

It will take time, and lots of research but that's OK- I think their second sentence in the decision is wrong as well-

also when they state "recent physical exam", do they mean the 29 1974 Jan- Clinic Exam at Lowry, Colorado?

 

 

 

 

 

 

 

Edited December 21, 2018 by Berta