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To CUE, Or Not Worth It?

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acesup

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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Im a big fan of "going back to the basics".  The Caluza elements are clear:

You have to have a "current diagnosis"...not a diagnosis in service.  Of course, a dignosis in service can help you, but not having one (or having an incorrect diagnosis in service), does not matter.  Sometimes, we can have disorders in service where a diagnosis was not even invented until much later.  (I recall Alex talking about Hep C not being diagnosed in service, when hep c was not a diagnosis until many of us were out of service) . 

Ditto for sleep apnea (OSA).  In the 70's sleep apnea had not been invented yet.  Oh, people still had it..but medical science on sleep medicine was non existant or very inferior, at a minimum.  A vet can still get sc for OSA if he meets the caluza elements..and he need not be diagnosed with OSA...he just has to have an "in service event" as well as a current diagnosis.  

Diagnosis change.  PTSD used to be called "shell shock".  There might be stuff on "changed diagnosis".  

However, I am puzzled as to why you are going to this much effort to "change the record".  Im not getting why this is a big deal.  Yes, there are things I would like to erase, but I also learned from those mistakes.  I dont go for any benefits unless I think it will/could result in additional compensation.  Applying for and persisting with VA benefits is much  much too difficult and frustating to do it for 0 (additional) compensation.  From VA standpoint, I dont see why they dont just give it to you if it makes no difference in compensation, if it makes you feel better about yourself.  

Well, now I know how Berta won so many claims..she used the power of prayer.  There is no doubt it helped me, too, but MORE than just money..much more.  

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broncovet,

I guess I'm misunderstanding what you're saying, or maybe I've been unclear, but thanks for your input.  Whatever I do at this point, I won't act until my recently-granted appeal is promulgated.  In the meantime, Ill keep investigating and deliberating what my course of action will be after it's done.

There are a number of reasons why I wish to correct the record.  I had a problem with depression which originated while I was on active duty.  In 1973-74, there was much stigma attached to any type of mental health issue, and by seeking help for what I was going through, (instead of just being quiet and toughing it out,) my battle with depression made me undesirable to the Air Force.  No, they didn't come right out and say "undesirable", but nevertheless, I got the bum's rush with a phony "Personality Disorder" dx and a "General Under Honorable" discharge.

There was depression (and associated conditions including nervousness, sleep problems, etc.) in my STRs.  Shortly after I got discharged in 1974, and filed for what was called "nervous condition", the VA made it sound like I was trying to claim something illegal.  They didn't investigate or adjudicate, just told me that my claim was not valid.  I did have a "current" diagnosis right there in my STRs, the diagnosis didn't evaporate between discharge in February 1974 and filing a claim the next month in March 1974.  They didn't consider my STRs or do any psych C&P.  They really didn't "deny", they "ignored" and "dismissed" my depression claim.

I had a few pretty bad years back then.  I lost my Air Force job, I couldn't keep a civilian job, I couldn't stop trying to drown my problems in alcohol, and then I couldn't stay out of trouble.  I went to jail a couple times, and almost went to prison.

I'll never believe that the Air Force or VA caused my problems, but they swept me under the rug, and then told me my depression claim was total B.S. that couldn't be compensated under the law.

I do still have a current diagnosis.  I claimed "depression or other mental disorder" in 2009;  in 2011, it was granted by DRO review back to 2009.

I have medical evidence and lay evidence that my depression began while active duty,  and didn't stop the day after I separated.  I even have a 2009 C&P that calls it "dysthymic" or long-term depression, and references my depression problems while active duty.

Don't be mistaken, if I do win a revision of EED, there absolutely will be additional compensation coming into play.  There's no such thing as CUE if it didn't  “manifestly change the outcome at the time it was made."  My depression rating in 2009 was 70%, reduced to 50% in 2011.  Even if VA granted 10% or 30% or 50% back to 1974, any of those amounts would rise to the level of "manifest change", since my ratings back then (for lumbar spine disability and residuals of hepatitis) were only 20% combined.  So, any difference in my ratings, with an EED of 1974, would mean 35+ years worth of manifest change, or serious pocket change.

I do hope I can change my discharge.  The discharge never caused me any job difficulties, and my civilian career ended 19 years ago.  It means little other than that an "Honorable" for medical reasons, rather than a "General" for P.D., is (IMHO) the right thing.  

As far as praying, I try to only pray for God's will.  I don't think I want to ask for money or stuff.  I don't know that he cares whether I win a CUE or not, really.  LOL but true.  I like that "Serenity Prayer" I learned in A.A. over the years.  For years, I accepted whatever I was told, but now I believe I can change a few things.  I guess after recently winning my nine-year running battle with the claims process, I've either become emboldened or deranged.

Edited by acesup
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Acesup

               Your CUE sounds so much like the one I filed about ten years ago based on my disability rating as having a Nervous Condition dating back to 1971 when I was discharged from the Army.  I was granted a 10% rating for a mental condition based just on my service record and a brief stay in a veteran's hospital.  I had what I thought was a great claim that included an IME from my private doctor who said I was totally disabled and suffering from a psychosis due to service in Vietnam.  What I did not know was that the VA failed to even look at my IME, but swore they considered all the evidence of record. I was only 21 years old and just trusted the VA to have actually considered all the evidence.  At that time the VA did not have to list or enumerate the evidence in the record.  When you start to deal with these old claims via a CUE you are not granted benefit of doubt.  It is purely adversarial and unless the evidence requires no judgement beyond recognizing a blatant error you may lose.  The VA rules and regs. you have to deal with are the regs. and rules that were in effect at the time of your CUE.  The VA has come an awful long way since the end of the Vietnam War.  I also was slapped with the personality disorder DX just to try and make sure I could never file a claim for disability.  I did win on that front and I got my general discharged upgraded to a honorable one and got TDIU based on PTSD/Depression.  It took 25 years, but I got there.  I lost my CUE based on absurd VA rules in effect in 1973.  If I had know how important filing an appeal would be I might have won 100% in 1973.

                           

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John, 

It is too bad we didn't have the Internet available to us back then, huh?  We were pretty much resigned to only knowing whatever few tidbits of info we might stumble across, or anyone might choose to toss to us.  I was also (nearly 21) when I got out, I knew next to nothing, and I'm not convinced my VSO then was much more informed than I.

I realize that whenever VA can say they considered the evidence and made a decision, there is very little chance of establishing CUE, no matter how poor a decision it may have been.  While occasionally CUE might be admitted for failure to service connect a disability, they make it pretty clear now that a lowball rating is just tough doo-doo.

I'm totally convinced that I will PROVE beyond doubt that, in their own words and on their own letterhead, the VA VSR who handled my claim did not apply the existing laws to my claim, because (s)he mistakenly believed and asserted that "nervous condition" was not a disability that could be compensated under the law.  Service connection and a rating weren't denied; they weren't even considered.

Trying to be an optimist nowadays, I'm still searching for a needle in a haystack, or a pony under a pile of horse manure;  eventually, I hope to find a VERY similar claim to mine, but I'm still looking.  It has to be out there somewhere.  I would bet good money that the same rater told at least a few other veterans that their claims weren't legally valid, using the same logic as (s)he did with mine.  However, I don't think I need it.  I think between what Berta has provided, and what I've found, it will be hard for the VA to disagree with the evidence.

Congrats on finally getting TDIU, I recently won that too.  It kinda takes the pressure off of everything else,\.  

Edited by acesup
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I am still looking too but I think you got them on the CUE-

we have 918 pages of CUE info here and many cite old CUE awards....

Here's one:

https://www.va.gov/vetapp05/files1/0505032.txt 

One CUE denied but two others the vet claimed were granted-

Back to 1955 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Even if he only got 10% for the #2 and/or # 3- this was 50 YEARS of Retro.

Nothing is impossible!!!!!!!!!!!!

 


 

Edited by Berta
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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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