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MAC64

3 Points Needed to Prove Adjudication Made a CUE

Question

Posted (edited)

Hello Defenders of freedom!

I have a question pertaining to this denial for headaches. The decision letter is quoted below. 

 

3. Service connection for headaches.

"We may grant service connection for a disability which began in military service or was caused by some event or experience in service.

Your STRs are negative for any treatment of or diagnosis of headaches. On your post-deployment exam in 2005 you denied any headaches. On separation, you denied any headaches. VA treatment records are negative for any treatment of or diagnosis of headaches. On VA exam, the examiner stated there was no evidence of any residuals of a traumatic brain injury.

We have denied service connection for headaches because the evidence of record fails to show this disability was incurred in or caused by military service."

From my understanding these 3 points must be overturned to successfully win a CUE case:

 (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; 

(2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time of the prior determination

and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  

@Berta, or veterans out here who have knowledge/experience, tell me what facts you think would be needed to prove this denial for headaches was an error? 

Edited by MAC64

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"10 year old denials" can not be appealed except for CUE.   However, you can resubmit new and relevant evidence via 38 cfr 3.156 to reopen a claim.  The effective date will be determined by 38 cfr 3.156 c.   That is, if the new evidence is "new service records" you should get the earlier date.  

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You got it almost right.  Number 3 is, instead, that the error was "outcome determinative".  (If the VA misspelled a word, that is an error, but that would unlikely affect the outcome, so its not cue, for example).  

My advice:

Get a copy of your cfile and file a nod on the decision if its within a year.  IF, indeed, its documented in service you did have headaches in service, or you had an "in service event" to cause headaches, then submit that as new and relevant evidence under 38 CFR 3.156 C or 3.156 b.  

File the nod prior to one year after the decision in all cases.  Elect "supplemental claim lane" and NOT higher level review.  It would appear that either:

VA did not read your evidence. (That would not be the first time), or

The VA (for what did not have that evidence). 

I dont recommend "cue".  Its better to file it as 3.156, you need not meet the cue standard of review, and retain the benefit of the doubt with 3.156.  

If you dont have an "in service event" for your headaches documented, you need one.  (In service event or aggravation is one of the required 3 caluza elements).  

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45 minutes ago, broncovet said:

Get a copy of your cfile and file a nod on the decision if its within a year.  IF, indeed, its documented in service you did have headaches in service, or you had an "in service event" to cause headaches, then submit that as new and relevant evidence under 38 CFR 3.156 C or 3.156 b.  

File the nod prior to one year after the decision in all cases.  Elect "supplemental claim lane" and NOT higher level review.  It would appear that either:

VA did not read your evidence. (That would not be the first time), or

The VA (for what did not have that evidence). 

I dont recommend "cue".  Its better to file it as 3.156, you need not meet the cue standard of review, and retain the benefit of the doubt with 3.156.  

If you dont have an "in service event" for your headaches documented, you need one.  (In service event or aggravation is one of the required 3 caluza elements).  

BroncoVet, thank you for you reply, and that you for clarifying the 3rd requirement! That means a lot...

 

okay, so I filed the NOD (supplemental) and STR showing sick hall visit for headaches one year after documented in service event with current diagnosis, nexus, lay and 4138. This is a 10yr old denial. Fun fact, prior to the headaches denial, I was never given a headaches C&P exam.

 

 

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Hi BRONCOVET!

Yes of course, so the new STR were found in my c-file. That means the adjudicator did not see it, or ignored it. Can they do that? 

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Not only did the RO do so but it is on intent. And if you have to ask a question, not knowing the answer before hand, then the answer is yes, for that as it was shown there is a system before you started and hit start game--The Legend of Zelda. For that "first impressions matter" and on the spot are granted to proceed. 

For that most submit claims are blank "book reports." Remember doing book reports in school, this is the same exact thing. What you originally did was turned in a blank book report and expected to get an A from the teacher who isn't even in the class room as it was shown in the movie Real Genius, watch the film. 

My original claim the C&P doctor said I had GWS but didnt sign the DBQ and I moved on with my life, and now after lawyered up, my lawyer and I are fighting this. 

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

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