3 Points Needed to Prove Adjudication Made a CUE

[MAC64]

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 August 15, 2019 by MAC64

[Oceanbound]

12 minutes ago, Oceanbound said:

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. 

Nothing is a straight path from the start, only after you are at the end it then becomes a straight path looking back. As you found out by playing the Legend of Zelda from start to finish. Which is a good n solid example since this game was made in 1985 and completely related to today and 30 years from now. The RO is a system set up decades before you even filed a claim. Many examples come to play that often complete ignored: Bruce Springsteens' song "Born in the USA" not the catchy song but the words in it (read them and see why), this website started in usenet/BBS days. Meaning you expected them to play nice, have expected Rolls-Royce treatment from nothing.  Rolls Royce was actually two persons just like Hewlett-Packard.

So if you have to ask a question, then the answer is no, because you are asking the question without knowing.  Two individuals walk up to a Business/Law/Med graduate school admissions person and ask:

Person 1) Do you think I should retake the test I scored 500?

Person 2) Hi there I'm Oceanbound, 700 club, former Navy, work for company and will be quitting it to become an entreprenuer/lawyer/doctor.

Hi there (woah this dude introduced him/herself to me and wasnt like yo dog i heard you went to seattle.)

700 club - because I failed the test then bought the best strategy guide book, joined the Beat&Ace-the-Test.com to ask/read/improve my weaknesses, came back a year and aced it.

Go Navy beat Army. Military in general means you were put into leadership positions faster compared to most civilians.

Work for company xyz (burned out by it or wanna move up?) and will be moving on from it to become an entrepreneur/lawyer/doctor (ooh ok  so you have direction and purpose, good you dont need me to explain to you the most repeated  basic questions) 

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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. 

Back to basics. This isn't quantum physics. But it is if you get the VA Regs book which is like the size of a phone book. All you have to do is show that you knew the basic principles of quantum physics to pass. But you did not.

And "book report" is the basics that we all done before passing high school. Majority turn in blank reports expecting to fly to Mars without even obtaining your book aka C-FILE. Going through it to find the fruit because you need the fruit and not 500 pounds of hay. Which is where the term finding a needle in a hay stack comes from. When I obtained mine it was 900 pages. It doesn't take 500 or 1000 or 2000 pages to make a pizza. So why would you tell me to go to the fruit farm or send me an entire fruit tree when all I want are the fruit from it? The answer I gave you was concise and clear for those that been through it already, while the newbs is reading it as a foreign language. Eventually you will then that foreign language.  

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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.

I put in famous quotes at the end of my answers sometimes that related to the question being asked.

[MAC64]

Thank you for taking the time to leave your insight, and wisdom. 

[vetquest]

Mac64, I would go with broncovet's suggestion.  He has been doing this for a very long time.  Good luck re-opening your claim.

[broncovet]

38 CFR 3.156 C says:

38 CFR § 3.156 - New evidence.

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§ 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a)New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating theclaim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b)Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(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 the claim, 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.

(2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decidedclaim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

 

[MAC64]

I have to talk this through because I understand  where you all are coming from.  

New evidence is evidence not previously part of the actual record before agency adjudicators...

So the rater did not review my records because I found STR for complaints of headaches via my c-file.

 Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

My understanding of this, leads me to believe the STR I have submitted with the 20-0995 would fulfill the requirement for SC. Once SC, if the effective date is this year then the argument begins for an earlier effective date.  

Which then raises the case for a processing error. 

 

[GeekySquid]

My first question is for clarity.

Are you asking about a denial from 10 years ago and you have NEVER been SC'd for headaches?

the answer to that determines what options are available to you.