CUE Update

[RBrogen]

I wanted to send out an update on my CUE claim.  As I suspected from the process and response, I received a denial decision letter today.  They denial almost verbatim regurgitated the same statements from the original denial in 1999.  It's like the reviewer simply read the original denial, retyped it and said too bad without addressing the issue of probative values and presumption of sound condition.  My question is for next step, should I go through the process of Higher Level Review to see what they say before going to the Board of Appeals to exhaust every option before hand.  Any thoughts would be greatly appreciated.

Best,
Randy

Edited January 21, 2020 by RBrogen

[RBrogen]

I'm not sure about the provision.  However, with no medical records, no treatment records, 3 entrance/airborne exams in the negative spanning 4 years, and the documented statement that there were no lingering issues, no medical treatment sought and I returned to school the next day, I would think coming up with a "torn ligament" diagnosis would not be acceptable.  I also told them the only reason I remembered it was because I was teased by other students when I didn't go back to football tryouts the next day.

[Vync]

Soft tissue injuries can be a bit cryptic. Not having a paper treatment trail could be a problem.

 

[Vync]

Here are some old rulings. I'm not certain if these are precedent or single just decisions, but they might be helpful. I found them in some older BVA rulings from 1995 through 2000. Of course, they were likely for active appeals, not CUE. 

 

Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court)
https://www.uscourts.cavc.gov/documents/Gilbert11-2355.pdf

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000058568/Gilbert-v.-Derwinski,-Jul-25,-1990,-1-Vet.App.-49-(1990)

 

The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court.  38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). 

https://www.uscourts.cavc.gov/documents/Webb_00-340.pdf

 

To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 

https://www.uscourts.cavc.gov/documents/Harris_99-53.pdf

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000061412/Caluza-v.-Brown,-April-12,-1995,-7-Vet.App.-508-(1995)

 

 

[RBrogen]

I submitted an HLR for the CUE decision and requested an informal conference call ... not to my surprise, no one called and when I followed up with the VA today, the HLR is pending decision.  I am going to assume it was a rubber stamp and not a real review of my case.  I will wait for the formal letter and then submit the Board appeal.

[Vync]

I really hope they get your claim right this time.

When I submitted my CUEs, I requested a call. When it was getting close to decision time, I called 1-800-827-1000 and asked when I will get my call. One guy chuckled and said I would not be getting one. I asked him why not because it was part of the form I sent in. I called the WH VA Hotline and put in a complaint. This past Monday, I received a call that is in response to my complaint. The guy was able to tell me some of the particulars (what was granted and % changes), but said he could not talk about retro amount or how they came to the decision itself. The problem was they denied my CUE for TMJ % due to not applying DeLuca. When I got the letter from my VSO the next day, that's exactly what happened. I was hoping the moron would perform a split decision to send out the awarded claim and kick the jacked up claim back for processing. I was actually hoping to get a call from the person making the decision. Probably next week I will be filing a supplemental.

In a way, I kind of miss being able to file a reconsideration request. At least with that you don't lose your place in line. I'm worried that when I file a supplemental or HLR, we get sent back to the start of the line.

[Guest]

16 hours ago, RBrogen said:

I submitted an HLR for the CUE decision and requested an informal conference call ... not to my surprise, no one called and when I followed up with the VA today, the HLR is pending decision.  I am going to assume it was a rubber stamp and not a real review of my case.  I will wait for the formal letter and then submit the Board appeal.

From one veteran to another my best advice is try your best to stay healthy ( HA, HA, HA), never give up the fight.  Take your claim all the way to CAVC and try to outlive your claim.  Sorry to say really not joking, one thing or another is going to take us out of this world so if you feel your claim is worth it then fight, fight, fight and if you pass stick your hand out of the grave and give your dependents evidence they need to fight. 

Yes, sorry again feeling jaded about the VA system and what they do to veterans.  They hire and pay more and more employees and pay them instead of paying veterans.