Another Cue Question

[carlie]

Ok , I know I'm kind of anal at times, but here's another CUE question

and/or possible situation.

Let's say vet was honorably discharged June 1978.

Same vet files claims for SC of several disabilities July 1978.

VARO denies claim, stating all disabilities denied under code 8.

(Code 8 only means nonservice connected).

38 CFR

3.1

(l) “Nonservice-connected” means, with respect to disability or death, that such disability was not incurred or aggravated, or that the death did not result from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

After many, many years of NOD's, Appeals, Hearings and DRO's --

Vet is FINALLY awarded SC on the same issues, with the same evidence

that was in the original claim filed one month after separation from active duty.

Actually awarded DIRECT SC.

38 CFR

3.1

(k) “Service-connected” means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service

Wouldn't this-- by VA's own definition be CUE ? ? Could EED retro come from this approach ? ?

Appreciate your thoughts on this.

carlie

Edited October 25, 2005 by carlie

[Guest Jim S.]

As to the answer for CUE, their is not enough information to give you a substantial answer to this. But you may have a simple claim for an earlier effective date for disability. Since you are already SC for these disabilities, it should already be shown to have a nexus to service.

On the surface, it may be argued at the time of the earlier decisions, it was a matter as to how the evidence was weighed and not a matter of a misapplied regulation or rule which you would have to find in CUE.

If they still have time to submit a NOD, I would apply for a EED and note the evidence of nexus from your claim, that supports the EED.

Jim S B)

[Guest jstacy]

Carlie, It appears according to your post that since you were first deined in 1978 and were awarded Direct Service conenction based on the exact same evidence that a CUE may be in order. Compare the award Letter and the denial letters from 78 and use the wording in the letters. If the reason for denial was bogus.

There is another factor to consider, C and P examiners opinion. Did you have one in 1978? Also compare those.