Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • homepage-banner-2024-2.png

  • donate-be-a-hero.png

  • 0

ETS in 1985, military exam but no VA C&P

Rate this question


kanewnut

Question

I applied for disability and was examined before leaving the military. The VA never scheduled me for a C&P. Is this considered a CUE? I am guessing that C&P's have always been required, but under what circumstances? Was my exam by the military before ETSing the same as a C&P? I have searched but can't find the answer.

Link to comment
Share on other sites

Recommended Posts

  • 1
On 6/21/2019 at 7:25 AM, Richard1954 said:

This would not necessarily been a cue.. you stated that you had to send  them a copy of a page from your service medical records.. if the VA did not have the medical record(s)   that showed this condition then they will argue that no cue exist since the medical record in their possession did not contain the necessary medical information to rate the neck. 

Well, this isn't quite true, sir. It might be considered CUE not to reconsider the claim under the auspices of §3.156(c). Nevertheless, VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found some today that were introduced in 2015 in your claims file), the best way to file for it (CUE) is a 526EZ to make it happen sooner. Why fight CUE when you can use the less onerous §3.156(c)?

Technically, you can file a CUE claim on toilet paper. There is no "proper form"controlled by §3.155 (2015 and later). Remember, you're asking for a Motion to Revise- not filing a claim for an entitlement. Before the §3.155 rule change in March 24, 2015, I used to put Tickle Me, Elmo stickers on all my 526s and 4138s.

Most folks stub their toes on CUE and lose. It's a unique legal maneuver with a long list of explicit requirements. The biggest one is if you do not file for it, you can't claim CUE on its not being awarded . VA is not expected to go on a safari through your medical records in search of every little ingrown toenail. If it is on a list of injuries at your PEB/MEB, it's fair game for a CUE. If you're expecting them to dig it out and consider it an implied claim now, you'll never get out of the gate. You have to prove it would have manifestly changed the outcome. That, folks, you can never go back in time and fix.

It's actually a piece of cake to file for it, win it and then file a NOD and ask for the earlier effective date. As we all know, you have one year to accomplish that. If you do not appeal by then, the ship sails without you. It sounds like Richard1954 had many opportunities to claim §3.156(c) as he won his claims. I routinely use this technique. Get your foot in the appeals door after your initial win and all viable arguments are on the table. Remember, if you don't appeal, it is a tacit admission you agreed with their decision. Ergo, it's right.

The Fugo court characterized CUE as a "rare error". Yes and no. It's rare if you can prove it was outcome-based. It's rare for most Vets to even find one because they assumed VA is above moral reproach.  CUEs are not rare. I can almost always find one in any efolder. It requires a keen eye and a lot of knowledge to spot VA's errors. Most antiques like this 1985 one above always go to appeal. Nobody wants their signature on a CUE for $950 K. It screws up your resume if you are asked to seek employment elsewhere.

However, Shea v Wilkie was just decided two days ago at the Fed. Circus and they say if the condition is mentioned in the MEB STRs being used to rate something else, then the VA should have enough common sense to spot the inferred claim(s). Another big step for Vetkind. You can't use it for a 1985 CUE but it is great precedence going forward.

Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

What is the time frame; when did you get the exam and discharge? The VA doesn't always have a C&P to disposition a claim, and no, it isn't a CUE. You don't know where you are in this. I would start by calling Peggy -800-827-1000, and see what, if anything they have. Let us know.

Link to comment
Share on other sites

  • 0
  • Moderator

I agree with GB Army.  You have gone beyond the one year presumptive period.  The presumptive period is 1 year from your date of discharge.  

The military does not give you a c and p exam.  The military gives you an exam at discharge.    Did you check your military records?  Considering its been many, many years, maybe you got one and forgot about it.  I dont remember my discharge exam..and may not have gotten one either.  

Its not CUE because, first of all its the military resposnibility not VA.  More importantly, the burden is on you that it (not getting an exit exam) "manifestly changed the outcome".  

Cue has to be outcome determinative.  

I suggest, after you get your records, apply for benefits and stop fretting about military mistakes.  

If the military made "0" mistakes, no one would ever get injured or killed in the military, so we would have little need for the VA.  

Link to comment
Share on other sites

  • 0

I agree with bronco, if the military failed to give you an exit exam it's too late to worry about it. I can't remember if  had one as well. To do things over I would make sure I kept better records with the medical issues I had in the military as well as the first year after getting out (to be honest I was not aware of the one year rule after getting out that any issue would be considered presumptive). Definitively go through your medical and military records with a fine tooth comb and apply for everything you may be eligible for. Unfortunately if your medical records are hand written like mine it may be challenging what issues you had. 

Good luck and don't give up!

Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

 At the Oakland California our processing Base,The only thing I remember  at ETS is getting a long form and going to all the NCO's And getting them to check off all the things that needed to be check off on this  ETS List .

I do remember they took my duffel -bag and empty it out and taking all my Pic's of Vietnam and some weapons I got while over there  they took all that and said it was all contraband (illegal to have)  pissed me off cause I had some really gross pics and things...anyway I do not remember going and taking a hearing test   but they say I did its in my records  but I just don't remember that  ,and I don;t remember anyone asking me if I had any health problems or injury's anywhere at present on my person, the only thing I do remember is getting to eat a steak with the officers at the mess hall  in there area of the dinning hall, after that I got my bag and me and a buddy took a taxi to SanFrancisico  Calif   for a  few cold ones & night with the ladies, next day I took a plane Back  home😊

(no I was not married) 😉

I think most of us coming back from Vietnam  or anywhere really we were just so hype up getting out of the military we really didn't focus on the things when we ETS like medical records or reporting anything that was bothering Us  I know I felt that way.  and then come 10/15 years later filing a claim for loss of hearing because a VA Audiologist at the VA mention to me I had severe hearing loss and I could be compensated for it...that's when I filed my first claim  and others after that   Had I known I could get compensated for my hearing loss I would filed my claim back when my hearing started to go bad.

Link to comment
Share on other sites

  • 0

He got an exam before getting out of the military.  What he did not get is a C&P with the VA.  Did you file a claim with the VA when you got out?  The only way they will do a C&P is if you file a claim.  Do you have any service connected military injuries that are bothering you now?

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use