Please review my CUE claim

[JKWilliamsSr]

I am in the process of filing a CUE from a 2009 disability claim.  I am almost finished with my document and will post the text of here for opinions.  Before I do this I will lay the ground work for why I am filing a CUE.

I filed for a bilateral foot disability, Bilateral Ankle Pain and Back disability.  I was denied for the foot disability because they stated it was not service connected.   They stated they could not find anything in my records that shows this disability.   I now have a copy of my records and it clearly is in my records.

My ankle disability is secondary to my foot issues.  I added it initially because a friend told me to file every ailment I have that pertain to my lower extremities because they may all tie together (I currently have 20% for degenerative joint disease in my knees).  The VA acknowledged my back issues during service but since there was no definitive diagnosis I could not be granted a rating for it.

So with all of that said.  As soon as I can I will post my statement filing for a CUE.

[JKWilliamsSr]

It appears there is no option to upload the document I scanned of the evidence used. 

They list 4 things as evidence.

1. Service treatment records for period of February 10, 1986 to July 8, 1996
2. No Show for VA examination date June 2, 2004
3. V.A. Houston Medical Center examination dated April 2, 2010
4. Service Personnel Records from September 5, 1986 to September 5, 1996

There is a story behind the no-show.  I actually tried to reschedule the appointment and was told I could not.  I had started a new job and had to be out of town for training on the day of the appointment.  I called 2 weeks before my appointment and was told that I could not reschedule and if I did not show for the appointment I would not be eligible for disability benefits.  I had to choose between the job and the appointment and at the time my youngest son was less than a year old.   I had to keep the job.  It was not until a retired friend (Vietnam Vet) from church told me to try again when I explained the situation to him.  He said the VA was different when I reapplied.   That is why there is a 7 year gap between claims.

 

The SOC has the date wrong though.  The appointment was June 2, 2002 not 2004 I assume it is just a typo because the adjudicative actions has the dates correct.

 

I did not mention the no show in my CUE letter because I did not think was relevant because the CUE is based off the 2009 claim.  However if the opinion is that it should be included could add it.

[JKWilliamsSr]

19 minutes ago, broncovet said:

Yea..that is the problem.  You dont know for sure if VA had your evidence or not, because this is non specific.  Go ahead and try the new evidence, 38 cfr 3.156 and order your ciflie to know what evidence the va has.  Then you can file cue..its never to late to file cue, but you may not need to 

I am sure they had the records in their possession.  When I filed my claim I did not send any additional documents.  The reason I decided to file a cue is because I finally received a copy of my service medical records that were in the possession of the VA.  The evidence I cited I would include came from those records and on the bottom each page this stamp is on it. " “Copy made by VARMC St. Louis from a record in VA’s Possession.” "

Edited January 25, 2019 by JKWilliamsSr

[seminoles]

2 hours ago, broncovet said:

Yea..that is the problem.  You dont know for sure if VA had your evidence or not, because this is non specific.  Go ahead and try the new evidence, 38 cfr 3.156 and order your ciflie to know what evidence the va has.  Then you can file cue..its never to late to file cue, but you may not need to 

question....if you are denied sc and can submit new evidence does that still give you the same date of claim as a s CUE?

 

[JKWilliamsSr]

I have thought of using 38 CFR 3.156  but thought my situation did not apply because it has been almost 10 years since my claim and I am not submitting anything new only what was in the records that I believed was in the possession of the VA.

[Berta]

You made a Valiant and commendable effort on the CUE but there are some problems with it-

I just posted the other day a Read First CUE Advice article here that might help.

I still think the 3.CFR 3.156 is the way to go-BUT you can file both- that type of claim and CUE as well.

Are the entries you feel they overlooked specific as to our disability?

meaning would anyone be able to see a nexus between those entrie and your current disability?

They probably skimed over them if they hold a good nexus- so I suggest that however you choose to deal with this , make sure you send them highlighted copies of those SMRS , or anything in your military personnel file)that show 

the nexus --- the link to your present claimed problems.

When the VA messed up a decision to my daughter ( a veteran) at VA Education Dept ( an oxymoron sometimes) by failing to add, with a copy of her DD 214, her 7 years of military service to her Chap 35 VA benefit EED, she said I wrote a brief NOD and I added a CUE in a very short letter that she signed and mailed to them ( 4-5 PCs ago) and within 3 weeks they sent her the proper Chapter 35 EED- so I realized you can file claims using more than one tactic and certainly in many SC and even widow's DIC claims- by using more than one theory of entitlement.

So I put the CUE in after the NOD-statement for my daughter . Separate paragraph-separate issues. Short and sweet and I reminded them that their own Chap 35 DEA  regulations for military veterans were right on their application, the exact regulations they broke,  and they had her DD 214.

It was the first time I ever used CUE I think. 

You wrote your CUE the way a BVA Motion should be prepared, in most respects.

However I assume this was for a VARO decision.....

I would file the 3.156 claim first and then wait a few days to file the CUE as well-if you choose to because the best decision would probably be on the 3.156 claim ,and if so the CUE would be moot.

The medical evidence in VA's possession MUST be probative and fully establishing a nexus,i the SMRS, or Personnel file. That is the way to use 38 CFR 4.6.

My last CUE award involved a CUE ( awarded in less than one month after the denial,) because the "medical" C & P  person had the Probative medical evidence from a Top VACO Cardio doctor, and it was listed on the denial, -exactly what they had, a 4 page report, but the " medical" person probably could not read or understand it so they make up some ridiculous  crap in the C & P exam- presently at Office of Accountability VA.They are looking into it because I cannot believe it was done by a "medical" person at all.

And my RO refuses to release the actual signed exam to me.

 

 

 

 

Edited January 27, 2019 by Berta

[JKWilliamsSr]

The entries that are in my medical records are related to the disability I am claiming.  My claim was for flat feet.  I was not certain of what is what but my records have notes of Plantar Fasciitis and Flat Feet.  I have an x-ray report in my records confirming flat feet and I my exit physical shows my feet are abnormal with moderate pes planus (entrance physical has my feet as normal)

It took me a while to get there but I see the logic on trying for the VA to reopen by citing 3.CFR 3.156 .  I still think there was a clear CUE on the part of the VA by not allowing my claim but I need to first be able prove that and citing 3.CFR 3.156 gives me that opportunity.  The VA was vague in the evidence they used.  The listed they used my SMR’s and even put the date range of the records.  The evidence I have which comes directly from VA copies shows they have those records. They just don’t show when they received them but I suspect they had them all along.

By citing 3.CFR 3.156 they will either grant the request or deny it by stating the evidence is not new and material.  If they do that then I have a clear CUE because that is an admission of having the records the entire. 

I am going to draft a new letter requesting reopen citing 3.CFR 3.156,  I am going to hold off on my CUE until I hear back on my new request.