Would this fly as a CUE Claim

[JKWilliamsSr]

In 2002 my back claim was denied by the VA.  The reason for the denial was that even though I was seen for back complaints (9 times)  There is no diagnosis of a chronic disability.  

Here is why I think this could very well be a CUE Claim.  The determination of no diagnosis of a chronic disability was may by someone unqualified (VARO or Reviewer) to make that determination.  There is no documentation from a single medical professional in relation to this claim concerning my medical history.   I have seen some case law on this such as Sokowski v. Derwinski that states "Remand was required of the veteran’s claim for service connection for actinic keratoses given that medical evidence contrary to the veteran’s medical evidence was lacking in the record and the BVA merely relied on its own unsubstantiated medical conclusions in denying the claim."  or Moore v. Derwinski that says "BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions."

There actually is a good bit of case law on unsubstantiated medical opinions by the VA and I wondered is my situation could apply. 

[pacmanx1]

On 11/12/2021 at 8:14 PM, JKWilliamsSr said:

On 11/12/2021 at 8:07 PM, broncovet said:

You have to have a CURRENT diagnosis..not one in military.  Instead of filing a cue, send them New and material evidence, under 38 cfr 3.156 C or 3.156b.  Send in your military records and your doctors current diagnosis.  This way, you wont have to prove cue, yu keep the benefit of the doubt.  probably a SCL

I have a current diagnosis as well as XRay evidence that shows the disability.  Currently have an appeal pending before the BVA.  

I think I screwed up in my original post.  I should stated the CUE was for an earlier effective date.  I am pretty sure I have a slam dunk for service connection at the BVA.  I have not only all my records sent I also have an IME from one doctor and an IMO from another.

What most veterans don't understand is that you can file a reopen claim, submit this evidence, and request the VA correct your effective date. Under 38 CFR 3.156 C or B a veteran can still win his/her earlier effective date. It is easier than filing a CUE Claim but be forewarned that you may still have to file an appeal to the BVA and or higher. If it has been over a year since your last rating for this issue, you can try to reopen this claim first. I also agree with Hamslice, if this claim is at the BVA, it would be best to wait for your decision and see if they address this issue.

Edited November 18, 2021 by pacmanx1

[JKWilliamsSr]

2 hours ago, pacmanx1 said:

What most veterans don't understand is that you can file a reopen claim, submit this evidence, and request the VA correct your effective date. Under 38 CFR 3.156 C or B a veteran can still win his/her earlier effective date. It is easier than filing a CUE Claim but be forewarned that you may still have to file an appeal to the BVA and or higher. If it has been over a year since your last rating for this issue, you can try to reopen this claim first. I also agree with Hamslice, if this claim is at the BVA, it would be best to wait for your decision and see if they address this issue.

I agree and I am going to wait for my appeal to get finished at the BVA.  I found some more relevant information when going over the original denial letters and they will pretty much make the 38 CFR 3.156(c) filing for an earlier effective date that much easier.

My original claim was in 1996 for Back,  Finger and Knee issues.  My back was denied for not being a "well grounded" claim.  That is what the did before the VCAA came into play in 2000.   In the 1996 denial letter the VA cites my back complaints from the years 1986-1989.  This is where the issues come in.  I served from 1986-1996 and it appears either some of my records were not available or completely missed.  I was seen a couple times for back issues from 86-89 but the majority of my back issues were from 90-96 and it well documented in my medical records. 

Based on this info with SMR's that were clearly created but either not available or used in the decision process I could be looking at an effective date of 1996 for my back.

EDIT:  When filed my supplemental claim for my feet and back I submitted a statement in support of claim as to why my my claim should be reopened.  I stated the evidence I submitted and I also cited both 38 CFR 3.156(a) and 38 CFR 3.156(c) which the VA is required to address.  However, in the decision letter and the HLR decision they make no mention of either.

Edited November 18, 2021 by JKWilliamsSr

[Scottish_Knight]

On 11/13/2021 at 2:46 AM, JKWilliamsSr said:

I was never given a C&P exam.  I was denied outright because whoever reviewed my file said I did not have diagnosis of a chronic condition. However, I was seen 9 times on active duty for back issues.  What is written in my SMR's is either Back Strain or Lumbar Strain as the diagnosis.

JK, you never underwent a C&P exam when you retired?  If you were seen 9 times whilst AD, this should have been passed along to the initial C&P physician.  The VA was or should have been provided a complete copy of your medical records and the matters concerning your back should have been noted and forward to that physician.  If that was not the case, then I would agree that this is a matter for a CUE claim.  A clear and unmistakable error.

You will need to research the CFR.  I did a CUE earlier this year on a 12 years old matter and won on my initial claim.  Berta, Pacmanx, BroncoVet, et al., were very helpful in that endeavor.  In my claim, which I highly recommend you do the same, was to lay out the error (without personal opinions), quote the CFR violation, and the remedy along with impact on me.  Try and get into the mindset of how a lawyer might write or say it. 

But from what you've written, it sounds like you have a strong case for a CUE claim.

[broncovet]

If I read what you posted correctly, you are at the BVA currently.  You probably want to find out the outcome of the BVA claim, before considering filing CUE on an effective date, for an issue you are not sc for yet.  

There is an order to things:

1.  Service connection or no. 

2.  Disability percentage. 

3.  Effective dates.  

     You dont want to get these out of order...Example:

You get awarded SC at the BVA for 0 percent.  You dont want to dispute the effective date of your zero percent rating, as an eed for a zero percent wont affect your pay.  

Therefore, wait until service connection and disabiity percentage are adjuticated, and then go after the effective date(s), if in dispute.  

I agree this is MADDENING.  Trust me, I dont like it.  It means you often have to appeal the same issue 3 times, or more.  

I did not get this either when I started.  It cost me lots of time.  

It is exactly how VA turns a claim that should/could take six months or a year, into a long drawn out appeal process that takes (in my case) 17 years.  

There is a financial benefit to VA for doing it this way.  In every case, va wins:

1.  By delaying, you may quit, get to sick too continue, or die, before its ever complete.  VA wins.  Now, its up to your widow and she must know how to proceed.  She starts by filing a substitution of claimant, and if she does not do so timely, your family will lose.  

2.  Now, lets take the "best case senario":   You hang in there and appeal until you win.  You get 10 years of retro.  You get that money "without any interest", and, you get 2010 retro at 2010 rates "even tho" when you get the money you have to pay 2021 prices for money you got in 2021, but should have been paid 11 years earlier.  Try owing IRS money for 10 years...you will pay them interest, and penalties.  But, not when VA owes you money.  

As an example, my home increased from about 60 k to about 110k in the past 11 years.  Its the worst possible senario for Veterans, the best for VA.  We lose even when we win.  

 

[JKWilliamsSr]

7 hours ago, broncovet said:

If I read what you posted correctly, you are at the BVA currently.  You probably want to find out the outcome of the BVA claim, before considering filing CUE on an effective date, for an issue you are not sc for yet.  

There is an order to things:

1.  Service connection or no. 

2.  Disability percentage. 

3.  Effective dates.  

 You dont want to get these out of order

You are correct and I am doing it exactly in the order you have listed.  As it turns out I will have two appeals for effective dates for my feet and back.  My foot claim is complete and I am rated at 50%.   However my back is still under appeal at the BVA and I waiting for that to be completed.  

Quick breakdown:

Feet:  Denied initially in 2002 and again in 2009 due to the VA claim of it not being in my service records.  Get my C-File in 2018 and SMR's show the foot complaints with X-Ray proof of flat feet and also a diagnosis of plantar fasciitis.   Send those records and finally get a C&P but get lowballed with 10%.  I hire an attorney and appeal that decision and get 50%.   

Back:  Denied initially in 1996 due to the VA stating I only had complaints from 86-89 and those complaints do not have diagnosis of a chronic disability.  Denied in 2002 and 2009 because I did not submit new and material evidence.  When I get my C-File I find the SMR's with complaints from 90-96 and diagnosis of Lumbar Strain and Mid Thoracic Back Strain.  Submitted those records and finally get an exam but am denied again.   That appeal is pending. 

My entire argument on the effective date on both feet and back will be 38 CFR 3.156(c).  It appears my service records from 90-96 were never part of the record for any claim.   If we are being honest though it would be safe to assume they were just ignored. 

I am not sure if anyone knows about a decision where the VA has tried to argue that if they grant service connection and base it off of 38 CFR 3.156(a) then 38 CFR 3.156(c) would not apply.   That was completely shot down in 2016 by a CAVC decision. 

Veterans Law Office of Amy B. Kretkowski — 38 C.F.R. § 3.156(c)(1) REQUIRES RECONSIDERATION EVEN IF VA HAS ALREADY GRANTED SERVICE CONNECTION (abkveteranslaw.com)

 

[JKWilliamsSr]

Something else I forgot to point out.   In my most recent claims I had a IME from The Ellis Clinic.  The VA has yet to give a reason and bases for why they did not accept his diagnosis.   When I hired an attorney I also has an IMO completed.  So I have not only SMR's,  current medical records for treatments. I also have an IME and an IMO.  On top of that I have statements from my current wife concerning symptomology and my ex-wife also submitted statement as we were married when I filed my 2002 claim.  We co-parented a son (now 20) so we are around each other alot for his event and get along.   She is a nurse with a BSN.   Of course her statements were ignored as well.