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]

8 minutes ago, GeekySquid said:

I try to limit my input to format and making the flow point to exactly what you want the reader to consider. It is like leading a pig to a specific puddle of slop. you want them rolling in that puddle and no others.

Overall from that perspective, this current draft is head and shoulders above where you started. I would consider an em dash between the law number and topic; that may seem ticky tacky to you. It would just make it clearer to the reviewer.

If I was asked (and chose to answer), I would echo @Berta in that your strongest claim is in the Presumption of Soundness. That link to VLB is critical to your success. At induction nothing was done to 'investigate' if you actually had a permanent injury. The Dr's notes have to be more than you just saying "I hurt myself once", on a form, to overcome the Presumption of Soundness. That is an area for you to focus on and write the strongest refutation of the C&P examiners claim that your injury is not SC. at best his claim would be that your NSC injury was further harmed by in service events.

I have zero opinion if playing softball on your units team will constitute an "in service" event. I just flat out don't know.

@Vync the level of specificity in citing your claims is all part of my singular focus on leading that pig to slop. The format can/is critical to leading the reviewer to the conclusion you want. We have all heard of the vet who sends in a couple hundred pages and expects the VA to find the problem. That never turns out well. So it is my opinion that drawing them the exact map to the conclusion you want, is in fact, your most effective tool in that shed.

@Berta is spot on in that a CUE at the RO is vastly different than one at the BVA. The BVA operates under a different legal standard across the spectrum. At the BVA lawyers and paralegals and judges look at legal issues with their scope and authority. They have different rules and standards.

At the RO, the standards and rules are laxer. One way to phrase it is that more "opinion" can be brought into play (I know some will object to that characterization; it is just a way to view what they can do at the RO). The RO also has the requirement to Maximize the Veterans compensation and view things liberally in favor of the veteran. The BVA requirement is a bit more structured in legalese and procedure.

If a CUE, a legitimate CUE, can help avoid the Hamster Wheel I don't see the problem using it.

@Berta is an invaluable font of experience and assistance; with all her other things I do hope she keeps weighing in on questions about CUE's and other topics like DIC. She is the Queen and most respected.

Thanks so much @GeekySquid!  I've modified the format to have specificity on the exhibit references, page, paragraph etc and feel pretty good about the flow.  I guess it is just a matter of creating a claim with a 21-4138 with reference to the evidence and then attaching the evidence to the claim.  I assume there is no special claim process I have to do to submit this as an RO claim since the decision was Boston RO and not the BVA correct?

Also, not sure what you mean by "consider an em dash between the law number and topic"

Edited September 9, 2019 by RBrogen

[GeekySquid]

6 minutes ago, RBrogen said:

I assume there is no special claim process I have to do to submit this as an RO claim since the decision was Boston RO and not the BVA correct?

it has to be mailed to the RO, Certified Mail Return Receipt Requested. Include all exhibits.

7 minutes ago, RBrogen said:

"consider an em dash between the law number and topic"

the em dash is the long dash. to type it in Word type two dashes and a letter (no space between the dashes and letter) then hit the space bar. The Word program should automatically put in the em dash as it is a default behavior. 

38 CFR 4.6 – blah blah blah

10 minutes ago, RBrogen said:

Thanks so much

You did the work. I just provided suggestions on format.

I chose to assist in this way because I feel that if I just wrote it for someone, they don't learn how to understand the formatting. If more people know how to format and decide content, then more people can help future vets learn to be their own best advocate. It is just a skill that has to be honed by use.

I have seen @Berta flooded with CUE questions and she has a ton of irons in the fire. If I can help relieve some of that flood, then I will do so. I feel this is the best way I can help. It is my opinion, that the folks who send in CUE's with a strong format are the best possible resource to assist those future vets.

Beyond the formatting issue, I just don't know all the medical conditions and terms and I really don't have time to devote to reading every page of every vets possible cue claim. I don't many would do have that kind of time and built in knowledge across all possible conditions.

If several of us (many? most?) can point that hypothetical new vet towards getting rid of verbal fluff and concentrate on the legal basis, then that vet can learn from many sources with a consistent message.

[RBrogen]

7 minutes ago, GeekySquid said:

it has to be mailed to the RO, Certified Mail Return Receipt Requested. Include all exhibits.

the em dash is the long dash. to type it in Word type two dashes and a letter (no space between the dashes and letter) then hit the space bar. The Word program should automatically put in the em dash as it is a default behavior. 

38 CFR 4.6 – blah blah blah

You did the work. I just provided suggestions on format.

I chose to assist in this way because I feel that if I just wrote it for someone, they don't learn how to understand the formatting. If more people know how to format and decide content, then more people can help future vets learn to be their own best advocate. It is just a skill that has to be honed by use.

I have seen @Berta flooded with CUE questions and she has a ton of irons in the fire. If I can help relieve some of that flood, then I will do so. I feel this is the best way I can help. It is my opinion, that the folks who send in CUE's with a strong format are the best possible resource to assist those future vets.

Beyond the formatting issue, I just don't know all the medical conditions and terms and I really don't have time to devote to reading every page of every vets possible cue claim. I don't many would do have that kind of time and built in knowledge across all possible conditions.

If several of us (many? most?) can point that hypothetical new vet towards getting rid of verbal fluff and concentrate on the legal basis, then that vet can learn from many sources with a consistent message.

Expert advice as always GeekySquid!  I am happy to pass on any knowledge I gain to new vets fighting the fight, we have to look out for one another.  I knew of the long dash, just didn't know that it was referred to as an "em". Learn something knew every day!

When I send it to the RO, I assume I have to fill out the 526EZ, 2104138 and then add all of the supporting exhibits to the package.

Edited September 9, 2019 by RBrogen

[Berta]

Vync that is a good point-from you and Geeky Squid too-----

Sometimes it is necessary to highlight in some way, the exact points you need to call their attention to----

I should have done that with my 3 pending CUEs- they rest on a OGC Pres Op that says 1151ers cannot be deprived of their SC comp.The opinion 08-97 states it is the intent of Congress that any veteran (or survivor) who succeeds in a 1151 claim cannot be deprived of a SC compensation award.

In my case I proved my husband's death was initially due to VA health care (1151/FTCA) but subsequently proved he was malpracticed on with 2 AO disabilities that contributed to his death.

The opinion says this:

 

"HELD:

Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151." Key word there is "and"

https://www.va.gov/ogc/opinions/1997precedentopinions.asp

But the opinion itself clarifies the word "ALL" in regards to what the intent of congress was.

In some copies I sent for this claim ( they like to lose my stuff so I make sure they get more than one copy) the word "all" is underlined and mentioned 3 times  but I think I highlighted it with a magic marker in some of them.

For example: my husband;s AO IHD was rated under 1151 under a CUE I filed.

They owed me 1151 accrued benefits and AO IHD accrued benefits.I got only the AO IHD accrued.

They owed me 2 months accrued 1151 100% P & T stroke-I got only 6 months.They did pay me 100% P & T accrued for my husband's PTSD,and the EED was correct, but I think they subtracted the 100% CVA from the 1151 100% PTSD and got "o" so they did not follow the Pres Op properly.

It is more involved than that and if they do the audit I requested correctly, I might not need to pursue these CUE claims. but my point is often things need to be highlighted in some way for the VA to get it.

 

 

 

 

 

 

 

[RBrogen]

2 minutes ago, Berta said:

Vync that is a good point-from you and Geeky Squid too-----

Sometimes it is necessary to highlight in some way, the exact points you need to call their attention to----

 

 

 

 

Thanks Berta ... I'm actually using highlighter to annotate exhibits so they can't miss where I'm pointing.

[GeekySquid]

12 minutes ago, RBrogen said:

When I send it to the RO, I assume I have to fill out the 526EZ, 2104138 and then add all of the supporting exhibits to the package.

at this time, or at least as of yesterday, there is no designated "CUE" form. There is a generic statement in one of instructions that says '...use for all claims", but CUE is different than an claim. IT is an attack.

I have seen some posts that RO's have pushed back on not using different forms for CUE but they all seem to be overcome by stating that there is NO DESIGNATED form for CUE.

I suspect if you add in the EZ you will cause that same confusion but I can't provide proof of that suspicion. I would let them say "no use form XXX" and then demand where that form is officially designated as the proper form for a CUE.