CUE (NO WAY!)

[FaithIsAChoice]

Hello Everyone:

I found this site a few months ago and have been reading.  I finally bit the bullet to sign on.

I would like to ask @Berta and @broncovet if VARO from the VA Regional Office could give medical opinions in the decision letters?

 

I received a decision letter that specifically stated, "The Veteran's private medical records from Dr. (name) shows a diagnosis of (disability) dated (date) "Therefore, it is the opinion of this reviewer that the Veterans (disability) is less likely than not (less than 50% probability) incurred in or caused by the injury or complaints during the service."

The nexus from the Dr. was more than likely.

Please I would appreciate any help with understanding this from the VARO stating the medical opinion.

Thank you in advance!

[FormerMember]

By the numbers-

1) your doctor did not state he had read your Claims file-even if it only consisted of 3 pages.

2) you are not given the benefit of the doubt if your records are missing or lost. You are only given a heightened level of review.

3) you lost because your IMO is defective. Your doctor didn't have anything to work with. He cannot opine on your illness/injury(ies) without some background evidence. You cannot recite your history to him and say "Yep. That's what happened." If you'd said "I was abducted by aliens and they screwed up my back.", you would be met with the same decision.

4) Intercurrent records from after service rarely ever prove an event or injury in service. They merely inform as to the subsequent damage. Ergo, they are only useful after you establish service connection.

5) a CUE filing would be useless here because you cannot dispute the evidence. Only if it is missing or was not before the adjudicator does that CUE prong arise. 

6) Most CUE's are won because the VA did not follow the regulations in effect at the time of the decision.

Basically, no STRs or service info = no dice. If you'd had Hep C and got it in 1970, you'd have cirrhosis by now. That would be evidence you could use to prove it happened in 1970. I just did that in front of VLJ Matt Blackwelder last spring.  See attached legal brief and BVA decision.

Always remember. VA claims require a level of expertise that most of us lack. It took me almost 19 years to figure out how VA screwed me and another 11 to win back almost half a million in retro. It's why I am now accredited to do claims. 

Every denial has the reason written in VAspeak. You need the expertise of the folks here to tell you what you lack. This is not easy.

 

Steve BVA Win redacted.pdf

Humphry brief.pdf

Edited March 17, 2020 by asknod

[sixthscents]

WOW... Hey guys good to see you all again. As to the post GBArmy, you need to order your C-File. It is easy just go to your local VAMC and locate the "Release of Information" office. They will print out the C-File and will also put it on a disk if you request it. I think there was a small charge for that... don't really remember. Also you can call and request it (though I have had precious little luck in getting any this way).

 

Bob Smith

[sixthscents]

Oh and as to CUE claims. Look a CUE claim is supposed to be a rare beast. To be clear it has to be such an error that any reasonable person looking in would say a mistake had been made. I have filed 2 CUE claims in ... I think 18 years now. I won them both but they were both very very obvious. I do not mean to discourage someone filing a CUE claim, but you have to be 100% certain an error has occured. (Unless something has changed).

 

Bob Smith

[Berta]

Sixthscents- LONG Time no see!!!!!!!!!!!!!!!!!!!!!!!!!!!

Welcome back!!!!!!

Thanks for being here- we have more successful Cuerinos than we used to have.

Even at the BVA I see more and more CUE claims from vets.

Studying BVA awards and denials for CUE years ago ( I still check the BVA almost every day)

is how I learned how to file a Probative CUE. The VBM by NVLSP helped too.I have 2 in Progress , and one of them is a CUE filed on an award. ...an award that  I would not have received without filing CUE on that initial denial. It took only 3 weeks to get the initial CUE award. Same with a CUE and NOD I had to file for my daughter.

Boy was she pissed- DEA ( Chap 35) only gave her one month of DEA- The regulations  for veterans are right on the DEA app and they had her DD 214. She called me and asked how the VA can e so stupid, and I said "Welcome to my World".

I prepared a NOD and also a CUE- sent it to her to sign, copy and mail with proof of mailing -it was very brief but scathing! I do not mince words. VA Edu reversed in 3 weeks then too-she got  7 years of Chapter 35.

You are right- a CUE should be Prime Facie- otherwise a vet can get overwhelmed in details.

They have to stick to the decision thy believe contains CUE, find the legal error they broke, and then make sure the evidence th VA had at time of that decision,whether listed as evidence or not , was properly considered.

That applies to most of the CUEs I see here.

My # 1 favorite reg is 38 CFR 4.6. I did a article on the Power of 4.6. In your absence former Sec Shulkin revised M21-1MR based on two of my suggestions. When his office secretary called me, the man did not identify what changes were made ,but I put M21-1MR here on them.

I told the Secretary (Shulkin) that ROs make too many CUEs , I referenced to my personal CUEs and the many at BVA  and that no one at the RO seeks CUE before a decision is sent out. M21-1MR now gives that job to the HLRs and we have seen that here , in many cases it works- and the VA HLR can correct the error right away.

I like filing CUE within the appeal period. If the decision is legally wrong -why wait. 

I advise using the alphanumeric to the top right hand side of the decision letter. The numeric identifies the RO, the alphas are the code for identifying the idiot who made the CUE and I suggest Put 'Attention to' that alpha code when you send them a CUE.

 

 

 

 

 

 

 

 

Edited March 20, 2020 by Berta

[FaithIsAChoice]

@Berta,  @broncovet and @asknod:

I truly from the bottom of my heart appreciate your replies and invaluable input!

Thank you!

[broncovet]

Faith as a choice:

    You posted (from your medical exam)

Quote

I am Dr. __, M.D. Board Certified in Family Medicine. My credentials are included. I have been asked to write a statement in support of the aforementioned veteran's claim.

I have personally reviewed ___medical history.  

This sounds like he reviewed your cfile to me.  For that reason,  your exam was not defective for that reason.  However, your IME/IMO still could have been defective, but for a different reason.  "Board certified in family medicine"  does not necessarily mean your doctor was competent to opine, "even tho" the VA often uses even less competent examiners.