CUE Potential

[RBrogen]

Hello Everyone,

I wanted to post this draft CUE motion here to get your opinions on strength of case, format and any other comments.  It has been redacted to remove my social.

General Overview:
I am service connected since March 2019 for neck, bilateral knees and ankles among other things.  The knees are the condition I am primarily focusing on at this time.

I had 3 full physical medical exams with no pre-existing conditions noted.  The first exam was when I joined the Florida Army National Guard September 16, 1985.  The second exam was when I transitioned to the regular Army on April 29, 1987  and the third exam was when I went to Airborne physical on March 13, 1989.  I injured my both knees during Airborne training, especially my left knee when I landed wrong on a jump due to wind.  I did NOT go to sick call or report it because there was no way I wanted to be recycled or told I couldn't come back ... which is a common theme with these types of training programs.  I also had an injury documented in STR for right knee MCL strain a few months before I got out.  I left the service because a few months after injuring my knee, I blew my back up and had a slipped disc and was discharged on July 3, 1991.

Not knowing anything about the VA, the DAV rep I had said file for your back so I did and was granted 20% for Low back syndrome as soon as I got out.  In 1999, I filed a claim for increase in low back syndrome as well as bilateral knee condition.  I had arthroscopic surgery on both knees and multiple instances of reports from doctors referring to the injury as service connected.  I was denied service connection for both knees as pre-existing condition on left knee and no chronicity on right knee.  I believe the rater completely ignored 38 U.S.C. 1111 as well as 38 CFR 4.6 in ignoring a preponderance of evidence supporting my claim.  I believe had the rater applied the laws correctly as well as reviewed the evidence available to him at the time, it would have manifestly changed the decision.

I'm attaching my information in pdf format to make it easier to read.  Than you all in advance for taking the time to look it over.

 

 

 

 

 

Cue Motion DRAFT Aug 29 2019_RedactedSmall.pdf

Edited September 4, 2019 by RBrogen

[RBrogen]

7 minutes ago, kanewnut said:

This is a claim for CUE, Clear and Unmistakable Error, under provisions of 38 U.S.C. 1111 and 38 CFR 4.6.

Shouldn't this be CUE under 38 CFR 5109A and they violated 38 U.S.C. 1111 and 38 CFR 4.6.

Thank you for the insight kanewnut.  Should it be something like this then:

This is a claim for CUE, Clear and Unmistakable Error, under provision 38 CFR 5109A for violation of 38 U.S.C. 1111 and 38 CFR 4.6.

 

 

Edited September 4, 2019 by RBrogen

[kanewnut]

I think that is much better.

[RBrogen]

3 minutes ago, kanewnut said:

I think that is much better.

Added the edit to the draft   Thanks kanewnut!

[Vync]

@RBrogen I'm in a similar boat as you. I am working on a couple of drafts. Looks like you used a template similar to what is found in the CUE forum. I like the approach of stating how the VA violated each regulation or law. I'm working to fine tune my wording for brevity and maximum impact. Will be posting my revised version very soon.

I am thinking of sectioning off each law to improve readability for both myself and the VA. I know it is probably not necessary, but the current version makes everything appear to run together. You cannot visually tell where each section starts and ends.

 

@GeekySquid advised me to make the exhibits a bit more focused so they don't have to read through the entire exhibit. Instead, you can tell them exactly where they need to look to find the pertinent evidence.

For C&P exams, something like: (Enclosure # C&P dated XX/XX/XXXX page # para #)
For regulation or opinions, something like: (Enclosure # page # paragraph #)

 

I am not sure if the VA scans documents in as black and white, grayscale, or color. I assume they probably do not use color because it takes up a lot more space. If they use black and white, some of the content might end up being washed out. I realized this when I started scanning in my own service treatment records. Some of the handwritten medical records where more difficult to read when scanned in black and white, but in grayscale (256 gray colors, 8-bit) they came out perfect.

 

[RBrogen]

1 hour ago, Vync said:

@RBrogen I'm in a similar boat as you. I am working on a couple of drafts. Looks like you used a template similar to what is found in the CUE forum. I like the approach of stating how the VA violated each regulation or law. I'm working to fine tune my wording for brevity and maximum impact. Will be posting my revised version very soon.

I am thinking of sectioning off each law to improve readability for both myself and the VA. I know it is probably not necessary, but the current version makes everything appear to run together. You cannot visually tell where each section starts and ends.

 

@GeekySquid advised me to make the exhibits a bit more focused so they don't have to read through the entire exhibit. Instead, you can tell them exactly where they need to look to find the pertinent evidence.

For C&P exams, something like: (Enclosure # C&P dated XX/XX/XXXX page # para #)
For regulation or opinions, something like: (Enclosure # page # paragraph #)

 

I am not sure if the VA scans documents in as black and white, grayscale, or color. I assume they probably do not use color because it takes up a lot more space. If they use black and white, some of the content might end up being washed out. I realized this when I started scanning in my own service treatment records. Some of the handwritten medical records where more difficult to read when scanned in black and white, but in grayscale (256 gray colors, 8-bit) they came out perfect.

 

@Vync Yes I combined a couple of different template approaches with what I thought made sense as a first draft.  I've received some great feedback already, including from @kanewnut and @GeekySquid.  I'm working on a draft revision now and will post that based on the great feedback.

I recently got my c-file a few weeks ago and there are documents in color in that so the scanning must be color by default.

Edited September 4, 2019 by RBrogen

[Vync]

1 minute ago, RBrogen said:

@Vync Yes I combined a couple of different template approaches with what I thought made sense as a first draft.  I've received some great feedback already, including from @kanewnut

That's awesome!

I have had a few rough drafts and posted them over the years. After getting advice and learning more, I looked back at them and determined they would have crashed and burned. Need to make them airtight.