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

[GeekySquid]

9 hours ago, RBrogen said:

do you think it makes sense to use them both

i will answer that by saying read both, decide where you have the best options to prove your claim using just the law and evidence, without need to explain anything or use words that might be read as opinion or emotional.

[Vync]

1 hour ago, Buck52 said:

Vync

for some reason I had thought you knew to do that?  anyway yes its a good thing to do.. not just CUE claims but its good to do it with all claims,

when we organize our claims and help make them better to read   the raters love it.

I did, but the massive heart attack left me with some cognitive and memory issues. Having to double and triple check everything I double and triple checked already. 

[Vync]

@RBrogen Found a CAVC opinion which might apply to your CUE. The decision letters tend to state something like "review of veteran's claims  file" as a catch-all under the presumption of regularity to indicate they were thorough (even though we know they were not). This opinion kinda reinforces 4.2 and 4.6. Even though they had the evidence of record, they did not consider X or Y. If X or Y could have affected the outcome of the claim, then CUE happened. Sorry for the paraphrasing...

US CAVC opinion: Russell v. Principi, 3 Vet. App. 310, 314 (1992)
[a] determination that there was a ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior AOJ or [board] decision.” The court in Russell held that VA’s failure to consider relevant evidence which was in the record before it at the time of the prior decision may constitute clear and unmistakable error, if the failure affected the outcome of the claim. A claim that an AOJ committed clear and unmistakable error in failing to consider pertinent evidence must be based upon evidence which was in the record before the AOJ at the time of the prior decision.

 

 

 

[RBrogen]

3 hours ago, Buck52 said:

Vync

for some reason I had thought you knew to do that?  anyway yes its a good thing to do.. not just CUE claims but its good to do it with all claims,

when we organize our claims and help make them better to read   the raters love it.

You guys ROCK!!!!  I'm making those edits ...

I've also found 38 CFR 3.304(b)(2) to show that the examiner didn't take into consideration that I was Airborne in such that "History conforming to accepted medial principles should be given due consideration."  The fact that they did not consider my Airborne status and that it "IS" a medically known fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic disabilities usually follow.

[Buck52]

RBrogen quoted

''The fact that they did not consider my Airborne status and that it "IS" a medically known fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic disabilities usually follow''

Right   & Geeky made some good points on that.

2 hours ago, Vync said:

I did, but the massive heart attack left me with some cognitive and memory issues. Having to double and triple check everything I double and triple checked already. 

Oh  ok I forgot about that Vync  ...I remember you telling me about the memory problems.  sorry your having the memory problems. and hopefully they have your heart problem under control.

Edited September 10, 2019 by Buck52

[RBrogen]

NEW DRAFT ... THANKS TO EVERYONE for your input ... my CUE case has definitely been made so much stronger because of your collective advice and guidance.  Let me know what you think about my latest draft!

Cue Motion Draft Sept 10 2019.pdf