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]

This is a beauty too:

"ORDER For the portion of the appeal period extending from November 26, 1991, forward, service connection for a psychiatric disorder other than PTSD, to include claimed as a nervous condition, is denied due to lack of entitlement under the law.

REMAND Additional development is warranted with respect to the issue of entitlement to service connection for a psychiatric disorder other than PTSD, (also claimed as a nervous condition), for the portion of the appeal period extending from March 18, 1974 to November 25, 1991."

https://www.va.gov/vetapp11/files2/1113967.txt

YOW!!!!!!!! In essense the BVA has again considered the nervous condition as a Disability-I am searching at BVA under Nervous condition 1974-

and if I can find my husband's 1983 award letter I could send you a buddy statement with it-but maybe I wont need it- 

the diagnosis was PTSD- from the Director ( also a shrink) and obviously his nervous condition , rated at 30% in the award, WAS considered a disability- but in 1983-maybe because of the VA's invention of PTSD -so maybe that wont help-

"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."

BVA says it was- as above!!!!!!!!!!!!!!!!!!!   

 

 

 

[acesup]

Thanks. Berta, that's very interesting stuff.  I think my central basis for a CUE is that the rater erred by not considering "Nervous Condition" to be a condition that he could adjudicate.  These cases you cite show that it certainly should have been adjudicated, and/or should have been considered as a claim for depression.

I knew you had dealt with CUE issues in the past, so I really appreciate you helping me get this one sorted out!

[Berta]

" I think my central basis for a CUE is that the rater erred by not considering "Nervous Condition" to be a condition that he could adjudicate.  These cases you cite show that it certainly should have been adjudicated, and/or should have been considered as a claim for depression."

YES!   I always say here that CUEs should be short and sweet. But in this CUE, I am adding Many legal citations,

and excerpts from past BVA cases ( based on regulations n affect at time of the 1974 decision, with links), to leave NO stone unturned!

Yes, they should have adjudicated the "nervous condition"! It was a "disability " for others, in 1972, maybe even  back further than that, as revealed by the BVA.

It has been a hectic week for me- and the research takes time, but I sure have everything I need to continue to do it......and am giving it my Best.

The BVA correctly states that:

“To establish CUE based on the failure to consider a particular fact or law, ‘in a pre-February-1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.’” Evans v. McDonald, 27 Vet. App. 180, 188-89 (2014) (en banc) (citing Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005) (emphasis in the original). Thus, in regard to the Veteran and his attorney’s first a ,etc etc"

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

That statement is the basis of this whole CUE I am preparing for you because the level for valid CUE , prior to 1990 is quite high.

The above decision however was a denial- yet full of great info- the vet was denied because he had no established inservice  nexus , where as you have that ,per the 1974 SF93, and a subsequent proper MH Award!  

I have learned more from BVA denials of CUE than from their awards.They contain thelegal  pitfalls us Cuerinos need to avoid.

 

 

 

 

[acesup]

Berta,

The more I read that decision, the more convinced I am that you're spot on in how there was CUE in my case.  I admit there is still a lot I don't know about CUE.  Is it filed like any claim through my VARO, then appealed (if necessary) like a normal claim, such as DRO and then Form 9 to BVA?  Or will it be filed with BVA from the get-go, bypassing the lower levels of VA bureaucracy?

[acesup]

In reply to any who think that I don't have a valid case for CUE;  you may be right, but maybe not.   Here is an excerpt from the Hill and Ponton legal firm's page discussing CUE (my emphasis on key points):

Quote

A motion for revision is appropriate when the VA erred by incorrectly applying the law that was in effect at the time of the prior decision and when the facts are clear that the claim would have been granted if the law had been correctly applied.  It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly.

It is my firm belief that VA did not correctly apply the law.  And in declaring that they could not "under the law" consider my disability as a valid claim, they did not adjudicate it.  I believe a court of law will agree that if the VA responds to a valid claim by telling you they cannot consider your condition compensable under the law, and they're wrong, it is CUE.  Further, once they state that a claimed condition is not a legally valid claim, it is reasonable to construe that any appeal would not be a legally valid appeal.  I believe that the claim would have been granted if the law had been correctly applied.  As far as the lack of a C&P exam back then to quantify the amount of disability, my employment and legal records from the period could certainly substantiate any rating from 50% to 100%.  The question is, can/will a rating be assigned for an old claim such as mine.  I'm looking for evidence, but I believe I will find that BVA and CAVC have sometimes assigned ratings in cases with drastically earlier Effective Dates granted on appeal. 

At any rate, I guess I'm going to find out, should I live long enough LOL.  I love this site, there is so much that can be learned on hadit.  Thanks all for input, and especially Berta for sharing your expertise!

[Berta]

"The question is, can/will a rating be assigned for an old claim such as mine.  I'm looking for evidence, but I believe I will find that BVA and CAVC have sometimes assigned ratings in cases with drastically earlier Effective Dates granted on appeal. "

That concerns me as well- but the fact remains that you did not get a C & P, therefore no rating- and you subsequently gained compensation for the MH disability.

My AO IHD death claim was based on no diagnosis and no rating in any prior VA decision.And no C & P.

However the VA determined by medical evidence that my husband's IHD was ratable . for 6 years prior to his death-

then again this was a Nehmer Footnote one claim-

Also when VA awarded direct SC death due to malpraticed ( never diagnosed or treated) AO DMII- they didnt rate that at all but agreed it had contributed to his death. ( 2 negative posthumous C & Ps and three IMOs, )

Maybe I should challenge that award-the ancillary benefits were what I sought- still no rating at all.

The quote you stated is for a Revision of a BVA decision-

You have a VARO decision.  Varo decisions are far easier to CUE than BVA decisions- but not impossible----

Motions for CUE at the BVA are a little different than RO CUES , because BVA is a different legal entity than the RO- who has to follow M21-1MR.

I helped member RSG win a CUE at the BVA years ago but cant remember if it was a CUE against the RO or the BVA.

 

I thought I would have the CUE prepared for you by now- but with holiday company this week and the death at my church, (cooking now for the family meal- will be there for hours today) I think it will get done this coming week.I found many citations of established VA Case Law to help with it.

hopefully things will calm down here-

The quote is great:

" It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly."

Indeed it is! 

Matt Hill, (Hill and Ponton) veterans lawyer, is a member of hadit.