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.

[FormerMember]

My two cents. In the 2009 claim that was denied, VA specifically stated you did not have evidence of a chronic disability.

[The reason for denial per the statement of case is that Service Treatment records show no evidence of complaints regarding or treatment for this condition.   No evidence was submitted showing that I have a current, chronic bilateral ankle pain condition that began during or was caused by military service.]

That is what they will hang you on. Remember, when you file a claim, you have the responsibility of proving your claim. This is a two-way street. Just having a mention of it in your STRs is not the automatic chicken dinner winner. Remember this, too. We teach everyone there are three ingredients to a win. 1) a disease/injury in service (annotated); 2) a current disease or injury that is similar or identical; and 3) a  nexus to tie #1 to #2. I strongly suspect you used a VSO to file the earlier claims and they just sent it in with no supportive medrecs showing it to be chronic since separation. Bingo-no CUE. If VA didn't have evidence showing it to be chronic, they can legitimately say the evidence, as it was known, was not in the claims file because you did not submit it. 

In the instant case here, you have #1 and #2- but not #3. VA did not acknowledge that there was a connection between your injuries in service and what you were filing for in 2009. You would have had to provide VA with a medical record in 2009 of a continuous, chronic disability from separation to 2009 showing it met the requirements of §3.303(b). Hence, by law ( §3.105(a)), you do not have a CUE. Absent a nexus/IMO from either a VA examiner or your own private doctor in any of the prior filings, you did not have the three ingredients. Thus, you cannot reach the "manifestly change the outcome" clause. 

You cannot introduce new evidence now of a well- documented chronic, injury. The time to do that was in on of your prior filings in 2002, 2004 or 2009. VA often uses the "you didn't report for the C&P" to deny anything. When you run into a situation where you cannot attend a c&p, always clear it up as soon as possible to avoid this situation down the road- in this case 2019.

With that said, I'd probably still file the CUE but I doubt you'll ever win it. I won't address any §3.156(b),(c) arguments as there is nothing to discuss in the evidence section or what you have told us.

[JKWilliamsSr]

I truly understand the point about the ankle condition.  I was claiming it as secondary to my foot conditions but since they denied the foot disability I had nothing to show as a nexus because I relied on that and I probably will not go for a CUE on that particular disability if denied and will just file a new claim as secondary to Bilateral Pes Planus and Plantar Fasciitis.  

Here is the problem I run (ran) into when filing for VA disability.  I did not have a single clue as to what to even ask for.  I did not use a VSO because the several I contacted had absolutely zero interest in helping me and it was obvious.  I know there are many very good VSO's out there but there are also a lot of bad and I encountered a couple of them. So I made generalized claims based on my symptoms.

My biggest issue and CUE complaint is the flat feet denial that they state was not in my SMR's.  I am submitting evidence that they were and filing a reconsideration under 3.CFR 3.156. Here are the things that are clearly in SMR's and most of these notes were from the base podiatrist and sick call doctor.

1. Tender Plantar surface of heel (sick call doctor)

2. Flat Arches (sick call doctor)

3. Heel pain/tenderness on wt bearing (sick call doctor)

4. Rigid Flat Feet (podiatrist) - I believe the word deformed is written here as well but hard to make out the reason I say that is because I can easily make out the defor but the rest is scribbled.

5. Plantar Fasciitis (podiatrist)

I also have an X-ray that confirms flat feet and my exit physical has moderate pes planus as I previously mentioned while my entrance physical has my feet as normal.

 

 

Edited January 28, 2019 by JKWilliamsSr
clarification

[Berta]

"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. " Based on the additional evidence you mntioned, in yuour SMRs and on Your discharge certificate,and the Podiatrist's entries ( which are Golden)

I agree-I feel it is a CUE, but I also feel 38.CFR 3.156 wil get this corrected with that evidence.

However we need input from members as to what specific part of 38 CFR 3.156 is applicable here:

https://www.law.cornell.edu/cfr/text/38/3.156

c)Service department records.

"(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided theclaim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:"

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

I guess 38CFR 3.156 C (1) would be the best bet-

But this veteran is correct that this is also a violation of 38 CFR 4.6.

Personally I would file under the 38 3.156 ( c) (i) but I would throw in 38 CFR 4.6 anyhow-because I love  "collateral attacks"!!!!!

But I have more expertise with CUE than 3.156 so we need more input here.

These were not 'newly discovered SMRS, or SMR that wer butnerd in the ST Louis Fire- the VA had them all yet did not apply 38 CFR 4.6:

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

VA did not "thoroughly and conscientiously " study the SMRs.

That is a CUE!

So I agree with you JKWilliams, but the fastest way to resolve might be the 38 CFR 3.156 claim.

I have severe pronation in both feet.I am a civilian.Until it got properly treated I had knee pain and backaches every day.

Any type of foot probem such as flat feet ,which I also have, can lead to further disabling  conditions.

Years ago a vet with flat feet Sced at a low rating, got up to 100% because of the damage that had been done to his ankles,knees hipsm and back due to improper treatment.I will try to find that case- BVA- long ago.

Flat feet can get worse in time.And pronation, due tyo flat feet puts a big strain on the ankle as well as everything else.

My podiatrist calls it the 'biomechanical results" of  this disability.

He is also a podiatric surgeon.

 

 

 

 

Edited January 29, 2019 by Berta

[Berta]

"CONCLUSIONS OF LAW 1. An extraschedular evaluation of 100 percent for service-connected bilateral flat feet is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, Diagnostic Code 5276 (2015); Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 2. The claim for a TDIU is moot. 38 U.S.C.A. §§ 1155, 5107, 7105 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2015)."

https://www.va.gov/vetapp16/files5/1634855.txt

That s not the older claim I mentioned.

also

"In the JMR, the Parties agreed that the 60 percent requirement of ง 4.16(a) has been met since December 1995. The Veteran's 30 percent rating for each lower extremity combines to 51 percent. See 38 C.F.R. ง 4.25. Adding the bilateral factor, the rating is 56.1 which is then converted to the nearest degree divisible by 10, which is 60 percent. See 38 C.F.R. งง 4.26, 4.25.

The Board, therefore, has jurisdiction to grant TDIU in the first instance back to December 21, 2005 if the Veteran has been unable to secure and follow a substantially gainful occupation since prior to that date. In the July 2013 decision, the Board granted a TDIU based on a finding that the evidence was at least in equipoise that the Veteran's service-connected disabilities of his feet, ankles, and right knee rendered him unemployable, when taking into consideration his level of education, special training and work experience."

https://www.va.gov/vetapp15/files1/1501939.txt

If I was a veteran, my foot disabilty would have prevented me from working in my last job before I became a livestock farmer.

I had been a professional "walker" for the county I lived in, walking school chilcren from private schools to and from a trailer at my church/school parking lot,  to get speech therapy- as the special ed teachers, by law, were not allowed to come into private or parochial schools to give speech therapy.

About 20-25 miles a week , of walking outside on concrete pavements.

My point is , flat feet can be a very serious condition,and very painful.And can certainly cause additional serious disabilities. 

 

 

 

[broncovet]

The rules have changed, recently, especially for effective dates.  Most notably, the term "material" has been replaced by "relevant", in regard to new evidence.  

The old "material" evidence was defined as "having a reasonable possibility of substantiating the claim".  I dont know that "relevant" has yet been defined by the courts, probably not.  But this difference could affect YOUR claim.  With CUE, you have to use the regulations AT . THE TIME, that is "material" evidence, probably a stricter interpretation of what new evidence would be required to reopen your claim.  

The newer (post Ramp-2017) "relevant" evidence  would mean that the bar was lowered to reopen using 38 cfr 3.156b or 38cfr 3.156 b.  If you were able to reopen the claim, this would leave the door open to be able to resubmit still more new evidence, which, I presume, could include a nexus IMO.  

Here are the new regualtions for effective dates:

Quote

38 U.S. Code § 5110 - Effective dates of awards

• U.S. Code
• Notes
•  
• Table of Popular Names

prev | next

(a)

(1)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation,dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(2)For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:

(A)

A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(B)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(C)

A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.

(D)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.

(E)

A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.

(3)

Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board ofVeterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(2)

(A)

The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.

(B)

For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.

(C)

This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

(4)

(A)

The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteranbecame permanently and totally disabled.

(c)

The effective date of an award of disability compensation by reason of section 1151 of this titleshall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.

(d)

The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.

(e)

(1)

Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.

(2)

In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.

(f)

An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.

(g)

Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.

(h)

Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.

(i)

Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper servicedepartment under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.

(j)

Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation,dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.

(k)

The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.

(l)

The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.

[(m)

Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.]

(n)

The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.

 

While this remains to be decided by the courts, this would appear to disadvantage Vets opting for legacy appeals because it specifically uses the Ramp term "Supplemental Claim", and not the old legacy "DRO review".  

[Berta]

 "With CUE, you have to use the regulations AT . THE TIME, "

Thanks for your input Broncovet.

38 CFR 4.6 was codified into law/ regulation  in the Federal Register 41 FR 11292, on Mar. 18, 1976.

https://ecfr.io/Title-38/pt38.1.4#se38.1.4_16