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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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I did win a CUE claim when I pointed out to VA that they failed to award me housebound status after I received an additional 60% rating on top of the existing 70% TDIU I had for years.  With the VA if you don't ask/demand you don't get.  I think the VA created the CUE claim to pretend that they wanted a way for vets to challenge past misdeeds and wrong decisions.  The CUE language is so restrictive that I really think it should be called "Clerical Error" claims.  It is as if you filed a claim for PTSD and the VA changed your claim to a back injury and then denied it.  It must be that bad to get the CUE  IMO.

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The two major reasons a CUE claim will fail are

1) Re-interpreting the facts in the earlier  (1973) decision is not a basis for CUE. It doesn't pass the "manifestly change the outcome" test. Two disparate, permissible views on how the evidence was weighed (assuming, arguendo that both were legitimate) can never rise to the level of CUE. In other words, you cannot come back and argue that the evidence showed you had bent brain syndrome.

2) Absent a diagnosis of a compensable psychosis in service or in the c&p examination post-service by the VA, your personality disorder (NOS) stands. You would have had to obtain a private dx of MMD and submitted it for there to be CUE. 

Remember, CUE is a violation of case or controversy. Either VA broke the law by misreading the regulation/statute or the evidence was not before the adjudicator. Either one is sufficient to open a CUE claim. Reasonable minds have to "see" the violation(s) and concur-unequivocally- that a different outcome would have ensued. 

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asknod,

I understand that you have handled CUE claims, and are much more experienced with them than I claim to be, but I believe I can prove that the VSR failed to properly apply existing law when (s)he arbitrarily dismissed my claim.  

1) Regarding "re-interpreting the facts";  It is my contention that the evidence proves that the facts were never interpreted at all.  I don't have a disagreement with how any evidence was weighed;  the record supports my assertion that in 1974, the evidence was neither weighed nor denied.  I claimed "nervous condition".  The VSR stated "your nervous condition is not a disability under the law...".  My case to prove CUE will rest primarily on the fact that the rater failed to apply existing law because (s)he erred in believing that "nervous condition" was not a valid, compensable disability.  I can prove that for over 60 years, "nervous condition" has been a commonly-used label (in countless VA claims including BVA cases) for mental health conditions including depression.

2)  Regardless of the Personality Disorder label, my STRs and my 1974 separation physical absolutely show the diagnosis of "depression" as well as nervousness, sleep disorder, and tension headaches.  Had these records been properly examined, there should have been a claim considered/weighed, and then a decision made.  (Now, I also have later evidence which ties my active duty depression to my current diagnosis).  It is fact that, had the evidence been weighed (in 1974), and a decision made on "nervous condition" or mental health disability, a basis for a finding of CUE would not exist.  But, from my point of view with my evidence, for all practical purposes this issue should be considered an unadjudicated claim with no decision rendered.

3.  Further, (I have recently requested another copy of my C-file so I can peruse it once again) I have not located any document that indicated I had any right to appeal the 1974 decision.  The "Decision Letter" certainly made no reference to a right to disagree.  While I'm aware that failure to comply with the VCAA "duty to assist" is not a valid basis for a CUE finding, I have found cases where failure of the VA to inform a claimant of "right to appeal" has been used to support a CUE claim.  Additionally, it is my theory that a court will agree that in the VA's dismissal of a claimed condition by stating it was "not a disability under the law",  the VA was clearly stating that there was neither a legal right to claim OR appeal said condition.

I once sued a certain automaker under a "lemon law", and observed as several attorneys along with a judge, spent hours haggling over a minor "either/or" statement in the applicable statute.  Any wino on a street corner, and most folks with at least a third grade education, could have clearly understood the statement in the statute, but 40+ years' worth of college degrees could not come to agreement of what it meant.  They argued, held sidebars, took a recess, held more sidebars, and still couldn't get it right.  I almost got in deep trouble for contempt of court.  I was in total contempt of those overpaid jackasses.  The judge finally said he'd rule on it the next day.  He did.  Incorrectly.  But, he was the judge, and HIS interpretation was the one that mattered.  IMHO, this is a good example of why courts, and appeals courts, exist.

There's no computer that some VA clerk can shove my complaint into, then proclaim that a perfect verdict has been reached.  I'm going to make somebody take the time to read it thoroughly, and issue an actual decision.  Right or wrong, they will have to adjudicate it, and if I'm denied, they will be forced to explain why, then allow me to decide whether to appeal...  Well, unless that same VSR still works there, he may just say "Your complaint of a CUE isn't one we can legally consider, because I say so".

So, again, I will proceed with this, not to oppose any decision that was "weighed", but to point out that the original 1974 claim was erroneously dismissed by a VSR who failed to properly apply the law.  

Quote

“The difference between perseverance and obstinacy is, that one often comes from a strong will, and the other from a strong won't.”  - Henry Ward Beecher

Edited by acesup
clarification

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This is a beauty too- it was remanded from the US CAVC.

https://www.uscourts.cavc.gov/documents/Simmons_98-354.pdf

Ken Carpenter (one the of the BEST vet lawyers there is) would not have taken this case without seeing some merit-

I think there might be something in there to help you re: Roberson or Hodges -but cant go over this until tomorrow-

I need to find the remand back to the BVA.

"RICHARD D. SIMMONS, APPELLANT, V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided June 4, 2003 ) Kenneth M. Carpenter, of Topeka, Kansas, was on the pleadings for the appellant."

This case goes back to the 1970s...

"Dr. Ford's statement provides no basis to establish service connection for arthritis and nervous condition." Ibid   Source -Above US CAVC case," and

"In the instant matter, the Board should be instructed by the Court to instruct the [RO] to determine whether the April 1977 [RO d]ecision fully developed the [a]ppellant's claims for service connection for arthritis and a nervous condition before deciding it on the merits."    Ibid.

In that way this statement is just like your's here:

"So, again, I will proceed with this, not to oppose any decision that was "weighed", but to point out that the original 1974 claim was erroneously dismissed by a VSR who failed to properly apply the law." Correct!  

Still I think you have everything you need.

Maybe I could call Ken Monday- to see what the result was.

 

The plaintiff (Appellee) is not related to me-just same last name- a coincidence-

 

 

Edited by Berta
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My CUE claim is at the Vet Court's website somewhere.  Read if you want to get really depressed.  I was service connected for what the VA called a "Nervous Condition" and granted a mere 10% rating back in 1973.  The VA did not read or include evidence I submitted via my private doctor which said I had a total disability due to psychotic disorder.  I believed at the time that the VA had read my doctor's report but had just decided it was overruled by my in-service record or by medical report from VA doctor made while I was in a VA hospital in 1972.  I was too dumb to appeal that initial low ball decision.  I spent at least 6 years on my CUE and I had good lawyers.  I was denied at the Court and tried to get into federal court but was not heard.  When you are dealing with old VA cases it is like opening a can of attack worms.  The worms attack you most often.  There have been so many rule changes over the years.  My CUE was sent back once due to the rules being changed between the time I first filed a claim in 1972 and had my first decision in 1973.  The VA was using the 1972 rules, so that cost me another year.  After you get your TDIU P&T, or 100% P&T then it is worthwhile to go back and try and find a lawyer to help with your CUE.  Both me and my lawyer thought that my CUE was so obvious and glaring that nobody could deny it.  We were wrong.  40 years of VA rule changes and smoke can reduce most claims to ash.

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