42 Year Old Claim - Cue

[Guest haroldkd]

First, I would like to thank Berta for writing a CUE for me on the old forum.

I did more research and study and believe the following might be another

approach to putting in a claim of CUE for my claim

P;EASE make comments, a person needs all the help and suggestions both negative and positive.

I will keep this as short as possible

In 1961 the doctors wrote on form 21-6796-1 and I will just qoute what is

pertinent.

This veteran filed claim seeking service connection for dermatitus. The evidence of record shows that during service and since service as shown by the current physical examination the veteran has multiple sebaceous cyst,chronic, recurring of the back of the veteran's neck. S ince these cysts are a constitutional and developmental abnormalty they will be disposed of under Code 13 as it is not shown the veteran had dematitis during service.

On this form they show the following

13, Constitution or developmental abnormality - not a disabbility under the law -- MULTIPLE SEBACEOUS CYST ON BACK OF NECK

The date on this rating was 01-3-62

The date on the denial letter 01-5-62

Here is the denial

Your multiple sebacious cys on back of neck are not a disease or injury within the meaning of laws and regulations governing payment of disability compensation and pension. Service connection may not be granted for this.

I was diagnosed 8 times during the serviice. On 2-3-60 Dermatology consult.

folliculitis and dermatitus

2 months after leaving service 12-61 a C&P exam

the diagnosis was multiple sebaceous cysts on the back of the neck chronic and recurring.

They left out the chronic and recurring on the denial, although it is definately part of the diagnosis and should have been so in the denail

under 38 CFR3.303 (B) chronicity and continuity Put into the regulations February 1961, 8 months before this decision.

I believe this is where they did not follow the laws and regulation at the time.That would be CUE ???

38 CFR 34.303 (B)

(:D Chronicity and continuity. with chronic disease shoown as such in service(or within the presumptive period under Sec. 3.307) so as to permit finding of service connection, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmanary disease, first shown as a clearcut clinical entity, at some later date. For the showinf of chronic disease in service there is required a combination of manifestations sufficientto identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merelyisolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, turbuculosis, multiple sclerosis, etc. ), there is no requirement of evidentiary showing of continuity. Continuity ofsymptomatology is required nly where the condition noted duringservice(or the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

2 years I had this disease in the service and still have disease today

They put the words chronic and recurring in the diagnosis. There should be No argument as to chronicity and continuity.

Please add your comments,

Thank you

Harold

[Guest haroldkd]

Today under the appeals I found what I was looking for

citation NR: 9626361

Decision Date: 09/20/96 Archive Date: 09/26/96

DOCKET NO. 93-02 123

1. Entitlement to service connection for sebaceous cysts.

FINDINGS OF FACT

1,A chronic sebaceous cyst skin disorder had its onset during active military service.

This veteran even had skin problems before service but the entry exams and paperwork did not show this.

They use 38CFR3.303 (B) for the chronic part and The veteran,s claim for service connection for sebaceous cysts is well- grounded within the meaning of 38 U.S.C.A. & 5107 (a)

ORDER

Service connection for sebaceous cysts is granted

I believe this is it. Now what is next ? How do I write it ?

[Guest Berta]

Today under the appeals I found what I was looking for

citation NR: 9626361

Decision Date: 09/20/96        Archive Date:  09/26/96

DOCKET NO.  93-02  123

1. Entitlement to service connection for sebaceous cysts.

FINDINGS OF FACT

1,A chronic sebaceous cyst skin disorder had its onset during active military service.

This veteran even had skin problems before service but the entry exams and paperwork did not show this.

They use 38CFR3.303 (B) for the chronic part and The veteran,s claim for service connection for sebaceous cysts is well- grounded within the meaning of 38 U.S.C.A. & 5107 (a)

ORDER

Service connection for sebaceous cysts is granted

I believe this is it. Now what is next ? How do I write it ?

<{POST_SNAPBACK}>

If I were you, I would copy and print out this CAVC decision and then send it under a cover letter to the VARO stating that you feel this decision is so similiar to your claim , that the same provisions of 38 CFR 3.303 are appropriate and should be applied to your claim also.

Great work finding this-

CAVC decisions are not binding on the VA but when the circumstances are so similiar and the regulations should be used the same way,I certainly think this might help them decide the claim better.

I have sent both CAVC and BVA decisions to support claims, under certain circumstances and they actually give an adjudicator a guideline to follow that can justify a good award.

Berta

[Hoppy]

Harold: You may be going about this wrong: The VA stated:

"Your multiple sebacious cys on back of neck are not a disease or injury within the meaning of laws and regulations governing payment of disability compensation and pension. Service connection may not be granted for this."

You need not have to prove a CUE claim, Since I believe you have now been granted SC for this problem under the correct diagnosis.

Submit a claim or appeal that your sebacious cyst were more likely as not the origin of your SC diagnosis now. Your Dr. should be able to assist you in writing a revised statement that after reviewing your complete medical history, that the diagnosis during service was in error and that the current diagnosis should have been the correct diagnosis or your condition is one and the same.

CUE uses the evidence at the time of the claim you are wanting to prove CUE at.

The existing rules and laws at that time say they cannot award a constitutional or developmental condition. The available evidence at that time showed you had sabacious cysts, not the current diagnosis.

No matter if it is chonic or not, at the time it was not a disability under their rules and laws at that time, so the VA could not have errored

Now with a corrected diagnosis, you should be trying to by your history that they are one and the same and should have been awarded SC at the time of the first claim or time of discharge from the service.

You need not prove CUE, you only need to show continuety from then till now.

The chronic nature of your treatment history should be able to show a connection.

I do believe you are only trying to prove an EED of you claim, you need not have to prove CUE for this. Just connect your original diagnosis with your SC diagnosis or that they were one and the same and you should be able to get an earlier EED.

You may have to also prove it was so bad that you should have been awarded compensation at that time two.

Jim S. B)

harold,

You asked for negative or positive. Here is my negative. Use it to your advantage of you can. Develop an argument to this position. The VA may not be compeled to address all issues if in fact they find any one issue that disqualifys the claim. If I remember correctly the original denial cited that they denied the claim because it was considered developmental. That claim should have been appealed and if the resulting decision had failed to address the chronic issue then you might have a CUE claim. The VA did not dispute the chronic or episodic nature of the disease. They will just say that they did in fact consider it chronic. Yet it was not the main issue for the denial. Thus, it was not necessary to address the issue of chronicity in the decision.

I have received denials indicating that I was not even treated for a disease while inserivce. My SMR clearly showed that I was treated for a disease that is presumed to be chronic and has no known cure. I appealed and it was service connected. I really think the correct proceedure would have been for you to have appealed the claim in 1961.

It sounds like you have made excelent progress with finding a favorable decision. I suggest that you back everything up with current and corresponding medical opinions if at all possible.

[Hoppy]

harold,

You asked for negative or positive. Here is my negative. Use it to your advantage of you can. Develop an argument to this position. The VA may not be compeled to address all issues if in fact they find any one issue that disqualifys the claim. If I remember correctly the original denial cited that they denied the claim because it was considered developmental. That claim should have been appealed and if the resulting decision had failed to address the chronic issue then you might have a CUE claim. The VA did not dispute the chronic or episodic nature of the disease. They will just say that they did in fact consider it chronic. Yet it was not the main issue for the denial. Thus, it was not necessary to address the issue of chronicity in the decision.

I have received denials indicating that I was not even treated for a disease while inserivce. My SMR clearly showed that I was treated for a disease that is presumed to be chronic and has no known cure. I appealed and it was service connected. I really think the correct proceedure would have been for you to have appealed the claim in 1961.

It sounds like you have made excelent progress with finding a favorable decision. I suggest that you back everything up with current and corresponding medical opinions if at all possible.

harold,

Some more thoughts, the fact that you found a case like yours that was service connected is good. However, consider the many roads some diseases wind up on. First it sounds like the disease was on a list of developmental diseases when it was first adjudicated in 1961. The VA had such lists and routinely dismissed cases that were for a diagnosis that was on the list. It could be that the disease was taken off such a list since the first time it was adjudicated. Or, the case you found that was awarded for some reason was not considered developmental. Just because one case is awarded does not automatically mean your case will be awarded. The medical principals must still be addressed on your claim. I would not assume that the VA no longer considers your type of disease as dvelopmental and you should get a physicians letter saying that your symptoms and time of onset do not represent a developmental form of the disease.

The fact that a doctor has written a letter saying that your current conditon and the inservice condition are more likely than not are related does not address the real issue of whether or not the disease is developmental. It is possible to have a disease which is related to a disease that also occurred in service and have it be denied becuase the VA thinks it is a developmental disease. You still need to shoot down the perception that the disease is or was considered developmental.

It is hard to figure out exactly what was going on at the VA 45 years ago. These are my guesses. I am currently service connected for a disease that was at one time dismissed by the VA as being developmental. As time went on specific adjudication law prevented adjudicators from dismissing my disease as being developmental and they had to consider the medical merits of each individual claim. I am afraid the your original claim was dismissed for the same reason.