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.

 

[Berta]

Paul- yes that makes sense and it what my daughter told me-I wonder if they elaborate on how the vet actually does it, at the discharge briefings- some of which some AD future vets often miss attending.

Aces up- to add -----this is "Golden":

"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. 

Did you appeal the reduction?

"It was then rated at 70% (Effective Date 2009), and reduced to 50% in 2011.  " Why was it reduced?

 

[Berta]

Just to add:

NOTHING is impossible:

"FINDINGS OF FACT 1. Service connection for cephalgia (i.e., headaches) was denied in a March 1975 RO decision. The Veteran did not appeal. 2. That March 1975 RO decision, however, was not supported by the evidence then of record, and the applicable statutory and regulatory provisions existing at that time were ignored or incorrectly applied such that service connection for cephalgia (i.e., headaches) should have been granted even then. 3. Effectively since August 14, 1974, the day after the Veteran's medical retirement from the military, his headaches have been very frequent, completely prostrating, prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The March 1975 RO decision that denied entitlement to service connection for cephalgia (i.e., headaches) is a final and binding decision since not appealed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012). 2. There was CUE in that decision, however, so it is overturned such that service connection for cephalgia (i.e., headaches) is granted with an effective date of August 14, 1974, the first day after the conclusion of the Veteran's service. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 3.400(b)(2)(i) (2012). 3. The criteria also are met as of August 14, 1974, for a higher 50 percent initial rating for the tension headaches, rather than just a 0 percent, i.e., noncompensable rating as of June 27, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012)."

"ORDER There was CUE in the March 1975 rating decision that denied service connection for cephalgia (headaches), so that decision is reversed; thus, rather than denied, service connection for cephalgia is granted effective August 14, 1974. A higher 50 percent initial rating, though no greater rating, is granted for these headaches retroactively effective as of August 14, 1974 (rather than just a 0 percent rating as of June 27, 2007), subject to the statutes and regulations governing the payment of VA compensation."

https://www.va.gov/vetapp12/Files6/1242407.txt

Acesup- you know more about CUE than you think----

We have gotten some prime facie CUE claims here over the years, and my CUEs are here as well, but usually the veteran ( and some widows) do not have any idea what they are filing CUE on-or what the legal error is-

I have made this point here many times-

If a claim is denied, then subsequently awarded- and was for the same disability- which might have been claimed differently by the veteran, as to an MH issue, since a veteran is not a doctor , and cannot diagnose themselves-obviously the past denial might well contain a CUE.

Question- did you get SSDI before the age of 65- and if so was that solely for the Major Depressive Disorder?

And if so, did the VA know of that SSDI award in any past claims you made?

Also did you ever apply for Voc Rehab-VA and get denied solely due to the SCs you have ?

 

[acesup]

Berta,

I do have much of my C-file, I probably should order a new copy.  I will call Peggy today to get that started.   What I do have, I got in 2009, and it is a jumbled mess.

I recently ordered my military service records, should get them soon.  In my C-file, I don't recall seeing any SF180 or 201 Personnel File.

When I was granted depression in 2011 (by way of DRO Review), it was retro to 2009, and the decision simply said it was 70% from 2009, then 50% from 2011.  I will find that letter.  I just figured it was based on my Psych notes from VA treatment and the C&P exam.

As far as when they referenced "recent physical exam", yes, I'm thinking they meant the Jan. 74 exam at Lowry.

My SSDI was granted effective in 2000, and was mainly for my SC back and related problems.

I applied for VR&E in 2000, was deemed infeasible (I think they said due to SC disability) and went through an Independent Living Program.  I applied for VR&E again in 2009, was told "infeasible", (the VR&E guy told me then I should file for 100%), again I THINK it was completely due to SC disabilities.  (Interestingly, at the time, I had some disability issues that were not SC, but I believe my recent BVA appeal corrected that problem.)

Another poster had mentioned that the active duty depression in 1973-74 may be considered "acute & transitory".   I'm sure it would be hard to rate, but I think my records show that it was long-term.  Besides getting court-martialed for AWOL and such (the year before my discharge), after I got out of the Air Force, I spent several years drinking, drifting, & job-hopping, and got thrown in jail a couple of times for my drunken tirades and general stupidity.

I tried for years to straighten up my life, but self-treated with alcohol until Dec. 2, 1993.  (Took my last drink over 25 years ago now).  I don't deserve any medals for anything I did back then, or anything since, but I was not a criminal.  I was a messed-up kid with problems I did not know how to handle.  I don't know the "secret" of life, but I've learned that with proper medication and occasional therapy, there is nothing that should make me hate myself and hate life.

Berta, I can't thank you enough for taking your time to look at my history.  I know it may sound stupid, but at 65 years old, and reasonably comfortable as far as my financial and home situation, this isn't so much about money.  I know that I played a part in making the mess that my life once was, but I've tried to correct my behavior.  Now I wish to correct the record.

 

 

 

 

 

[Berta]

I completely know what you mean-to correct the record.

I think that is why I have had so many claims myself after my husband died.

The 2009 award for direct SC death sort of corrected the wrongful death VA caused (FTCA)-at least it made it easier for me to deal with his medical error death-and I intend to get ALL of their errors resolved.to include the legal ones.

Your post here is not much different from that of Many vets- none of you should feel alone.

Congrats on the sobriety!   Alcohol only makes things worse.

[Berta]

BTW- the denial 1974, had no rating because they did not give you a C & P exam-

I won AO DMII claim and they have never rated it-and I have other issues more important than the rating-

They had to SC it it and refund my FTCA offset, and give me a new Chap 35 DEA date, as well as refund about 6-8 thousand in tuition to me due to the direct SC death award.

And I had a 2004 CUE on my 1151 DIC award- that they stated the award was for multiple instances of malpractice to include my husband's fatal, IHD, but never rated the IHD on that award.

I asked the Nehmer AO VARO to award that and another 2003 SC CUe I had pending-

They did award the SMC CUE, and the 100% P & T 1151  stroke that granted SMC HB, and rated the IHD as well for a six period, but I realize now that they never adjudiated the IHD 1151 CUE-and think it is with my current CUE issues there- I better check----

my long point is- the lack of rating ,in your case, is not concerning to me.

If they award the CUE, it will go back to the day after your discharge- and they might deem it as "0" SC, far better than "0" NSC, for a period of time , and then subsequent Fenderson ratings would be involved.Such as:****below.

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Posted 20 hours ago

"Berta,

I do have much of my C-file, I probably should order a new copy.  I will call Peggy today to get that started.   What I do have, I got in 2009, and it is a jumbled mess.

I recently ordered my military service records, should get them soon.  In my C-file, I don't recall seeing any SF180 or 201 Personnel File.

When I was granted depression in 2011 (by way of DRO Review), it was retro to 2009, and the decision simply said it was 70% from 2009, then 50% from 2011.  I will find that letter.  I just figured it was based on my Psych notes from VA treatment and the C&P exam.

As far as when they referenced "recent physical exam", yes, I'm thinking they meant the Jan. 74 exam at Lowry.

My SSDI was granted effective in 2000, and was mainly for my SC back and related problems.

"I applied for VR&E in 2000, was deemed infeasible (I think they said due to SC disability) and went through an Independent Living Program.  I applied for VR&E again in 2009, was told "infeasible", (the VR&E guy told me then I should file for 100%), again I THINK it was completely due to SC disabilities.  (Interestingly, at the time, I had some disability issues that were not SC, but I believe my recent BVA appeal corrected that problem.)"

****I agree about the 100% and this should be considered under Fenderson.

"Another poster had mentioned that the active duty depression in 1973-74 may be considered "acute & transitory".  No way it could have been because -they Sced you for it!

I am someone who is inspired by negativity-

After DOL denied 17 discrimination complaints I filed for my husand against a large federal contrator here in NY-I filed what ADA said was the first ADA discrimination complaint here in NY years ago-

using the voluminous evidence I had from the DOL filings-and other stuff- under FOIA, the ADA EEOC lawyer called me up ( my husband was in Day Treatment at the VAMC) and told me he had won and the DOL complaints had merit-and should have been resolved favorably but  he won due to employment discrimination due to his (at that time) 30% SC PTSD....the first filed case and first win in NY as far as he knew!

Also Many years ago about 20 NY lawyers told me- words to the affect -that they would not help me and my FTCA case ( wrongful death- by VA),that it could not "fly", that I would never succeed, 

 ( I also could not find an IMO doctor.)These were all well known lawyers in the Southern Tier of NY.

I just said piss on those lawyers- I did all the medical and legal work myself and I won.

Years ago I was in the county law library ( no internet as we know it now) checking my DEA benefits regs in 38 USC, and ran into a lawyer who I had been working with on something else- for a vet- and he asked if I ever got a resolve of the FTCA wrongful death issue I had ( he was not familiar with malpractice cases at all)- but was familiar with my FTCA issue)

and when I told him I had just received a settlement from the VA, the other lawyers there turned around to look at me-

2 of them-well known in this part of NY, were 2 that had turned me down on the FTCA case!They were stunned,.

They called him over and they were all talking about the case when I left.

Many things like that have happened to me over the years- and I have had Many denials,that through perseverance, I overcame.

The worse negativity of all to me came from the VA, in their ridiculous rationales, but it only made me stronger because I believe that Nothing is Impossible.

PS

Again I am going to sing the same song- to our members- as a widow of not one but two disabled vets-

if you have a spouse you love, make sure they are up to speed on the PC and that they have a  good handle of the DIC requirements.,and have access to your password here.

And if they feel you died due to VA malpractice-there are plenty of IMO doctors and FTCA lawyers around these days....if the VA doctors who treated you were really employed by the VA, and not contracting docs, who are filling our VAMCs these days, and VA has No liability over their actions.

Just search for the Tally case here - to see what I mean.

 

 

 

 

 

 

 

 

Edited December 22, 2018 by Berta

[Berta]

I have been assessing many CAVC and BVA decisions to help prepare your CUE claim-

and just found this interesting statement in a recent BVA decision:

" However, at that time in 1974, the Veteran was not service-connected for any psychiatric disorder; his claim for service connection for a nervous disorder had been denied in April 1972 for lack of an in-service occurrence, as previously discussed.  The regulation states particularly that “once a formal claim... has been allowed "or etc:

https://www.va.gov/vetapp18/files8/18125602.txt

 

There are many nervous disorder claims there- my point is that it appears the VARO had determined this nervous disorder WAS a disability but lacked any inservice nexus----as you have!

I have used Legal Statements from the BVA to support claims here once in a while.

And used a Legal BVA  statement from a past BVA appeal decision ( the VA considered my appeal as moot because I had won that claim at the RO level -1151 DIC-and didnt think to withdraw the appeal) to support my position with a refund of my FTCA offset- as it was the VARO still refused to pay me until I called the General COunsel- who ordereed them to pay me.

The BVA clearly stated that if I ever succeeded on a direct SC death claim ( which I did),the VA would have to refund the FTCA Offset amount.

I will make that point with above in the CUE claim---but have some excelent USCAVC decisions already-

I dont know if this post will go thru-it was over 60 degrees yesterday here but snowed last night and high winds are affecting my PC sat dish-----and my lights are dimming-----part of living at a high altitude in beautiful NY

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