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]

1 hour ago, Berta said:

Randy, I think your CUE is swell!

Vync-that is an interesting point on  38 CFR § 4.2- I have never used that in CUE claims- because I feel 4.6 covers a lot -and medical determinations ,if they are wrong, do not raise to CUE level just on that basis- still it would not hurt to throw it in-

I believe the strongest point of this CUE is the Fact that RBrogen had no pre existing conditions listed on his entrance exam and was accepted into service as fit to serve- and was a paratrooper -certainly a well know cause of lower extremity and back issues for many with that MOS.

I didn't  leave because , as Buck said I had other issues to wok on- true- and lots of Fall maintenance on my home-and farm.

I left because most of us hard core VA claimants here have "practiced" before the VA at the VARO level by fighting their War of the Words.The VARO level is the best place t get a CUE awarded.

I recall only one veteran here who won a CUE at the BVA, a CUE Motion on  BVA decision.

And two widows who filed Motions for BVA reversal due to CUE and lost.

99% of the CUEs we see here occur at the RO level. GBArmy made that point somewhere here a few weeks ago-

if I can find how he stated it, it is well worth repeating.

I am very happy with the excellent CUE advice that Vync, Geeky Squid, GB Army , Kanewnut, Dawsonatl and others here have acquired. I feel I am missing others here as well I should mention...who do understand CUE at the RO LEVEL.

R Brogen does as well!

I only recall one member here who won a CUE at the BVA, as a motion under CUE on a BVA decision.Two widows filed BVA motions but lost.

They did not have basis for CUE even at the RO level.

That is where a CUE should receive a Frontal Attack- at the RO level----

if it is a valid CUE ,there is no need for it to get on the Hamster wheel.

 

 

 

 

Thanks so much for taking the time to review my information Berta.  It means a lot, as does all of the wonderful feedback.  I'm attaching my latest, hopefully final drat so I can send this over to the Boston RO.  Would you, and anyone else with thoughts on it please let me know what you think about the format and if I'm missing something major.  I don't want to loose the opportunity on a technicality.

Just now, RBrogen said:

Thanks so much for taking the time to review my information Berta.  It means a lot, as does all of the wonderful feedback.  I'm attaching my latest, hopefully final drat so I can send this over to the Boston RO.  Would you, and anyone else with thoughts on it please let me know what you think about the format and if I'm missing something major.  I don't want to loose the opportunity on a technicality.

 

Cue Motion Draft Sept 8 2019.pdf

[Vync]

@Berta I was talking recently with @GeekySquid about CUEs. I know referencing exhibits simply by using  (Exhibit A) can work, but what about being very specific like (Exhibit A page # para #). I have always said spoon feeding the VA exactly what they need can be a good thing. Some of my exhibits are a bit lengthy so it might be helpful to show them exactly where they need to look. Just curious about your thoughts.

 

[RBrogen]

1 minute ago, Vync said:

@Berta I was talking recently with @GeekySquid about CUEs. I know referencing exhibits simply by using  (Exhibit A) can work, but what about being very specific like (Exhibit A page # para #). I have always said spoon feeding the VA exactly what they need can be a good thing. Some of my exhibits are a bit lengthy so it might be helpful to show them exactly where they need to look. Just curious about your thoughts.

 

Thanks VSync ..... I reference more specific locations in the narrative when referring to the exhibit ... e.g. C&P exam dated September 8, 1999 (Exhibit J), noted on page 2 ....  I probably should go and make sure each exhibit reference is as specific as possible.

[Vync]

4 minutes ago, RBrogen said:

Thanks VSync ..... I reference more specific locations in the narrative when referring to the exhibit ... e.g. C&P exam dated September 8, 1999 (Exhibit J), noted on page 2 ....  I probably should go and make sure each exhibit reference is as specific as possible.

It's just a thought. Some of them are pretty cut and dry. I would hope to assume the VA employee who reviews your CUE is a very sharp person with a goal of looking for any possible reason they can find to deny. Don't want to leave anything to chance or a lazy reviewer...

[Vync]

@RBrogen I found a small typo on the first page:

Quote

Veteran respectfully request

"request" may need to be changed to "requests"

 

[GeekySquid]

28 minutes ago, RBrogen said:

I reference more specific locations in the narrative when referring to the exhibit .

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.