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

[Berta]

" I listened to a SVR podcast where a lawyer (I think it was Carrie Weletz) said a CUE was --not-- a one shot deal. I have heard other folks elsewhere it was a one shot attempt."

Carrie knows what a CUE really is------

If the VARO denies a CUE , the vet can appeal to the BVA, and if the BVA denies the CUE, they will often state that the veteran is not prejudiced by filing another CUE:

It is stated this way: in this Jue 2019 decision.

"CONCLUSIONS OF LAW 1. The allegations of CUE in the November 1993 rating decision, which denied service connection for right shoulder injury, fail to meet the threshold pleading requirements for revision of the rating decision on the grounds of CUE and must be dismissed without prejudice to refiling. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2018)."

This vet filed many CUEs and the BVA rendered them as not prejudiced to re filing them.

https://www.va.gov/vetapp19/files6/19149684.txt

I would think that also goes for a VARO denial of CUE as well.

In this case the veteran failed to explicitly state what legal violations occurred.

The BVA made the same point I did earlier:

"RO decisions that are final and binding will be accepted as correct in the absence of collateral attack showing the decision involved CUE. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a)."

A RO decision can be CUEd at any time as a collateral attack , proving the point that nothing is 'final' in the appellate period. That is why I feel a CUE on a recent decision should be filed instead of a NOD, ASAP but the claimant needs to mark their calendar, if the VA starts to piss away that one year NOD deadline.

They tried to do that with one of my CUEs, making it appear they were 'working on it' but they weren't.

They even told me at some point it was with a VA "specialist". I think that is the same person who refills their toilet paper dispensers. I filed a NOD at the last minute.That was one of the CUEs that sat there for 8 years and the Nehmer RO awarded.

 

[Vync]

1 hour ago, Berta said:

They even told me at some point it was with a VA "specialist". I think that is the same person who refills their toilet paper dispensers

Lol, that specialist works at every VARO

[RBrogen]

5 hours ago, Vync said:

@RBrogen I was curious about one the next to the last paragraph on the first page about "common knowledge". We all know that is true, but it sounds more like an opinion. Worried the VA might try to discount it under "(4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong."

Hey @Vync ... I was concerned about that as well ... any thoughts on how to word it more definitively? I'm working on a new version, something like:

"It is a known medical fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic joint disabilities usually follow.  Veteran avoided reporting injuries so he would not be recycled or dropped from course."

Edited September 10, 2019 by RBrogen

[GeekySquid]

24 minutes ago, RBrogen said:

Hey Vync

jumping in here but off this direct topic.

read

38 CFR 3.304 (b) — Direct service connection; wartime and peacetime. (b) presumption of
soundness

and I wrote this as a general set of guidelines but used your situation as part of an possible way to phrase the claim section.

back to your question to Vync.

in your doc it says

"On page 3 of C&P Exam dated October 1, 1991 (Exhibit G), the examiner noted “Both knees injured
in service from training at Airborne and jumped out of plane caused damage. Never reported it,
never got treatment for it.”

It is common knowledge that veterans who are attending elite training such as Airborne course,
avoid reporting injuries so they are not recycled or dropped from the course"

did they actually write that you said that?

it presents a challenge to properly address that type of statement in a factual way as CUE requires. You may have to ignore the other general suggestions for this one.

You might try something like

  " The C&P record is incomplete. I also informed Dr. Blah Blah, that historically service men were expected to "man up" instead of going to sick call. Elite forces were under greater pressure on this issue than regular service men. Military records are replete with anecdotal evidence of the machismo mindset hammered into elite forces and with the shear number of unreported injuries to avoid being drummed out of training. " 

(I am not sure exactly what group you were training for? Airborne Rangers maybe? but be specific about which elite group you were heading too.)

the use of machismo, service MEN and man up are intentional. If you get a female reviewer she will likely agree with the use of machismo as a false sense of identity (current social fad) and recoil at the common concept that elite military were male and only male. If it is a male reviewer, he will likely internalize the pressure of what others think a man is and that elite men were somehow expected to be impervious to pain.

It is a manipulative statement, and if well formed will be extremely effective.

You could try to dig up one of the thousands of psych studies on how macho elite forces were expected to be if you wanted to bolster that claim, but it's value in a CUE might be questionable since it is not in the record already.

 

cue template to post - Copy.pdf

[RBrogen]

1 minute ago, GeekySquid said:

jumping in here but off this direct topic.

read

38 CFR 3.304 (b) — Direct service connection; wartime and peacetime. (b) presumption of
soundness

and I wrote this as a general set of guidelines but used your situation as part of an possible way to phrase the claim section.

back to your question to Vync.

in your doc it says

"On page 3 of C&P Exam dated October 1, 1991 (Exhibit G), the examiner noted “Both knees injured
in service from training at Airborne and jumped out of plane caused damage. Never reported it,
never got treatment for it.”

It is common knowledge that veterans who are attending elite training such as Airborne course,
avoid reporting injuries so they are not recycled or dropped from the course"

did they actually write that you said that?

it presents a challenge to properly address that type of statement in a factual way as CUE requires. You may have to ignore the other general suggestions for this one.

You might try something like

  " The C&P record is incomplete. I also informed Dr. Blah Blah, that historically service men were expected to "man up" instead of going to sick call. Elite forces were under greater pressure on this issue than regular service men. Military records are replete with anecdotal evidence of the machismo mindset hammered into elite forces and with the shear number of unreported injuries to avoid being drummed out of training. " 

(I am not sure exactly what group you were training for? Airborne Rangers maybe? but be specific about which elite group you were heading too.)

the use of machismo, service MEN and man up are intentional. If you get a female reviewer she will likely agree with the use of machismo as a false sense of identity (current social fad) and recoil at the common concept that elite military were male and only male. If it is a male reviewer, he will likely internalize the pressure of what others think a man is and that elite men were somehow expected to be impervious to pain.

It is a manipulative statement, and if well formed will be extremely effective.

You could try to dig up one of the thousands of psych studies on how macho elite forces were expected to be if you wanted to bolster that claim, but it's value in a CUE might be questionable since it is not in the record already.

 

cue template to post - Copy.pdf 42.72 kB · 0 downloads

The examiner noted "Never reported it, never got treatment for it."  See hand written note in attachment.  My comment was the "It's common knowledge blah blah blah" but I'm working on a  new version of that, something like:

"It is a known medical fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic joint disabilities usually follow.  Veteran avoided reporting injuries so he would not be recycled or dropped from course."

I like where you are going with that paragraph ... lemme chew on it some.

[GeekySquid]

3 minutes ago, RBrogen said:

lemme chew on it some.

there are many possible avenues to look at.

I tried reading that note and get about 3 words.

What I do get further supports your Presumption of Soundness claim, which I think, with 4.6, are your strongest, clearest legal points. I definitely encourage you to review that doc I attached and the law I cited on Presumption of Soundness.