Invalid DTA error in HLR ?

[dwbell99]

A higher-level review of your claim was conducted on ..., the issue of degenerative disc disease, lumbar spine (claimed as back), was returned for a duty to assist error. The decision review officer (DRO), returned your claim for the additional medical examination and opinion to answer the question of wither [whether?] the Veteran's claimed condition which existed prior to service was aggravated beyond its natural progression by the claimed condition ...

Problem is that the Veteran's claimed condition is "Service connection for degenerative disc disease, lumbar spine (claimed as back) as secondary to the service-connected disability of left ankle osteoarthritis". Since it is based on a service-connected disability, it cannot have "existed prior to service".

Does this meet the criteria for a CUE?

[broncovet]

Based on your post,  sorry, NO, but keep reading for other possible CUE errors!   DTA errors are specifically NOT CUE.  The major reason is that a DTA error would not necessarily be "outcome determinative", one of the cue requirements.  

An example may help.  

    You apply for sleep apnea.  You do not have the Caluza elements, there was no documentation of any event which may have caused sleep apnea in service.  

     In processing your claim, you notice a DTA error.  The VA forgot to send you some forms which included your appeal rights.  Is this CUE?  

      No.  You didnt have the Caluza elements, so the VA forgetting a letter is "harmless error" and does not affect the outcome.  Specifically, DTA errors are not CUE.  

      BUT, this does not mean your decision does NOT have clear error?  Why?  Well there could be other errors..that were outcome determinative..

      Many decisions have multiple, multiple errors.  Your's may also.  We dont know if yours had cue or not until/unless we carefully reviewed your decisions and cfile.  Even then, we are not decision makers so a decision maker may see it differntly.  

[pacmanx1]

Please do not lose faith, hope, and or focus. Just because you do not have a CUE claim and I am not saying that you do not. I agree with Bronco, we would need more information, but you still have options. If you disagree with a HLR/DRO or any decision, you can always continue your appeal to the next higher level.  In other words, you can file whatever form you need to allow your claim to go to the BVA and even CAVC if that is the next level. The VARO is one level, the first bump and if you disagree with their decision then file a NOD(Notice of Disagreement). There are many, many times when a veteran’s claim is denied at the VARO level but granted at the BVA level. Pay close attention to the REASON AND BASES section of your decision. Most of the time it will explain what you are missing to get service connection and or an increase in disability.

Please do not take this the wrong way but I see more and more veterans wanting to file a CUE claim and if they are within one year of their decision, they do not need to file a CUE claim. They can simply file a timely NOD and get the exact same benefits. When a veteran files a Cue claim s/he loses the benefit of doubt. Since there is no time limit on filing a CUE claim. Simply file a timely NOD and see what happens to your claimed benefits. CUE claims have a higher threshold  veterans, VSOs, and even some lawyers do not understand how to win them but a timely NOD is a disagreement with a rating decision and why the veteran feels they should be service connected, granted and EED and or increase or any decision that the VARO makes.

[broncovet]

I agree with Pacman.  The "standard of review" is lower with a regular appeal than CUE.  In Cue, you must jump over the highest bar (undebatable).  

However, with a regular appeal, you get the benefit of the doubt, a much easier bar to jump over than undebatable.  Why make it harder than it already is?  Are getting your  VA benefits not "enough challenge" to suit you?  After you have won some regular appeals, you can attempt a cue.  

However, Beginning drivers, who just got their first drivers license, probably should not be learning in the Indianapolis 500 race.  Cue is mostly for pros with great experience in VA benefits..such as Berta.  Im not there yet, I have had serious problems winning my claims by regular appeals.  The only cue I applied for I lost.  

[kanewnut]

16 hours ago, dwbell99 said:

Since it is based on a service-connected disability, it cannot have "existed prior to service".

You can have a condition that the military knows about and still lets you in. If service aggravates it you could get compensation. 

You had an exam  before entering service and one when leaving service. Does your exam before entering service show any conditions?  If it doesn't show a back condition before entering service you have something to argue with them about. 

[dwbell99]

On 11/22/2020 at 2:23 PM, kanewnut said:

You can have a condition that the military knows about and still lets you in. If service aggravates it you could get compensation. 

You had an exam  before entering service and one when leaving service. Does your exam before entering service show any conditions?  If it doesn't show a back condition before entering service you have something to argue with them about. 

There are no exams showing I had a back condition when I enter the Army and I did not have a back condition when I entered the Army. Nor did I have a back condition when I retired from the Army so did not have an exam showing a back condition when I retired. My back condition was diagnosed after I had been out of the Army for awhile.

[pacmanx1]

2 hours ago, dwbell99 said:

There are no exams showing I had a back condition when I enter the Army and I did not have a back condition when I entered the Army. Nor did I have a back condition when I retired from the Army so did not have an exam showing a back condition when I retired. My back condition was diagnosed after I had been out of the Army for awhile.

Basically, the DRO/HLR was not paying attention and no one caught it. You are going to have to write a statement in support to explain that you were filing secondary to your service-connected condition and not direct, primary, nor aggravated by service. You may also have to file an appeal.