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#1 nomochow

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Posted 02 August 2007 - 02:41 PM

Veterans and friends of HADIT,

I was diagnosed with a disease in service and had surgery. my SMR are negative for any conditions prior to service. I was denied SC at first attempt then granted SC on second attempt for same condition. Is the a basis for CUE that refers to the presumption of soundness or other statute?

Thanks for your input

#2 free_spirit_etc

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Posted 03 August 2007 - 01:17 AM

Do you think they made a legal error? As far as presumption of soundness - did they try to say you had the condition before the service? What reasons did they give for denying it the first time?

Free

Veterans and friends of HADIT,

I was diagnosed with a disease in service and had surgery. my SMR are negative for any conditions prior to service. I was denied SC at first attempt then granted SC on second attempt for same condition. Is the a basis for CUE that refers to the presumption of soundness or other statute?

Thanks for your input



#3 Berta

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Posted 03 August 2007 - 05:42 AM

"I was denied SC at first attempt then granted SC on second attempt for same condition"

If the first "attempt" is now a decision that is final, there could possibly be basis for CUE-

If you instead appealed that initial decision within the year NOD time and then were subsequently award due to the appeal-arising from the original claim- there would be no basis for CUE.

If you were awarded -but with an EED that did not go back to the original filing date-and you continuously prosecuted the same claim to the award-you could NOD the award decision (if you have time left) and tell them your EED should be the date you filed the claim.

It is possible that the medical evidence at time of original app did not warrant a SC rating but the disability progressed to a ratable degree as you pursued the claim.

There is considerable info here on CUE claims under search.

Edited by Berta, 03 August 2007 - 05:45 AM.


#4 nomochow

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Posted 03 August 2007 - 06:08 AM

Free,

they said "the evidence in its entirety" also they claim I made too many conflicting statements about when problems started.thats it. However, the evidence shows no issues on entering service and no documented statements I made claiming something existed prior to entry. I thought the evidence of record ruled. the bottom line (I believe) is the presumption of soundness was not rebutted and a chronic condition in service was documented...otherwise how can anyone become SC for the same condition that was denied? am I missing something here? what happened to looking at the entrance physical? If I am missing the point, let me know.

nomochow

#5 nomochow

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Posted 03 August 2007 - 06:28 AM

Berta,

"If the first "attempt" is now a decision that is final, there could possibly be basis for CUE"

thats correct-the decision is final. and their new and material evidence to reopen is pain-according to the documentation. and the idea the condition wasn't rateable cant work due to "medical accident" during surgery and surgical scars. I have read plenty on CUE, however I want the (priceless) HADIT expert opinion also. What could I be missing here?

nomochow

#6 john999

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Posted 03 August 2007 - 12:39 PM

File a CUE claim. All the VA can do is deny it and then you appeal. Speculation will get you no where. If their is money involved you will probably get a resounding "Denied" on the first attempt at your VARO.

#7 free_spirit_etc

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Posted 03 August 2007 - 12:54 PM

That almost sounds like they denied it initally because they found no "current" disability. And then granted it when the pain increased. If that is the case - it could be a CUE -in that it should have been SC as a nonratable condition the first time - but they could also say that it didn't "manifestly change the outcome of the decision" as you wouldn't have gotten PAID for the SC - the SC was granted - and you got paid when the condition was "ratable." (i.e. they could admit the condition should have been granted SC the first time - but that you didn't lose anything by it not being granted.)

Just my thought -- based on VERY limited information -- so I might be way off base here.

Free

Berta,

"If the first "attempt" is now a decision that is final, there could possibly be basis for CUE"

thats correct-the decision is final. and their new and material evidence to reopen is pain-according to the documentation. and the idea the condition wasn't rateable cant work due to "medical accident" during surgery and surgical scars. I have read plenty on CUE, however I want the (priceless) HADIT expert opinion also. What could I be missing here?

nomochow



#8 free_spirit_etc

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Posted 03 August 2007 - 01:02 PM

If they specifically stated that you were denied because the condition might have started prior to service - then you might have a case that they did not correctly apply the presumption of soundness.

As to the conflicting statements - Are they saying that you made conflicting statements as to when the disease actually started? Or that you made conflicting statements as to when the current disability (i.e. when it started bothering you after service) started?

Free

Free,

they said "the evidence in its entirety" also they claim I made too many conflicting statements about when problems started.thats it. However, the evidence shows no issues on entering service and no documented statements I made claiming something existed prior to entry. I thought the evidence of record ruled. the bottom line (I believe) is the presumption of soundness was not rebutted and a chronic condition in service was documented...otherwise how can anyone become SC for the same condition that was denied? am I missing something here? what happened to looking at the entrance physical? If I am missing the point, let me know.

nomochow



#9 jbasser

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Posted 05 August 2007 - 07:00 AM

In order to answer your question, I neeed to know the reasoning used in the first denial.

A cue is an attack on a final decision.

Examples of cue are well posted on the VA web site under BVA Search decisions.

One spacific case involved hypertension in service. The Veteran had 7 or 8 high blood pressure readings in service and several during the year he separated.

He files a claim and gets denied. The denial letter stated that the service records did not contain any evidence of hypertension.

The Vet does not appeal and a year later the claim becomes final.

Some time later ( Years) the Vet gets his hands on the service record and finds the blood pressure readings. He files the claim based on the readings and is awarded a C@P and receives a 10 percent SC for hypertension.

He filed a cue claim based on the fact that the RO did not consider the evidence in the service record at the time of the original decision.

That is a Cue because if the denial is reviewed, The outcome would have changed.

#10 Berta

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Posted 05 August 2007 - 07:55 AM

"the idea the condition wasn't rateable cant work due to "medical accident" during surgery and surgical scars. I have read plenty on CUE, however I want the (priceless) HADIT expert opinion also. What could I be missing here?"

If the "medical accident" caused you to become additionally disabled and/or unable to work-and VA committed the "medical accident" you are missing the potential of a Section 1151 claim.

But if the "Medical accident" was inservice event- Feres Doctrine prohibits recovery.

How did VA word the actual denial?

#11 nomochow

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Posted 05 August 2007 - 10:14 PM

Berta,

a quote from the SOC said "the evidence in its entirety" also they claim I made too many conflicting statements about when problems started.thats it."

thats really all they said. sounds crazy but there isn't much to the 3 sentences. for VA to start a SOC reasons and bases saying "the evidence in its entirety" sounds kinda stupid anyways. seems like there was plenty of evidence to grant initially- including an established chronic in service condition. those guys are wanna-be gangsters.

can someone point me in direction of a quasi form letter to submit a CUE?


nomochow

#12 Berta

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Posted 06 August 2007 - 07:09 AM

This is the first draft of the CUEs that VARO is working on now:

I separated the two issues and filed each CUE separately.This might help you.

A CUE claim must have:

Final decisions identified as to their dates.
what specific regs the VA broke.(the actual CUE)
what the manifested altered outcome should be (more retro)

A CUE claim MUST hold these three prongs as VA calls it-to be considered as CUE.


"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A.


The CUE occurred in two final Buffalo VARO decisions, dated July 1997 and also January,1998.

The VARO failed to apply VA case law and regulations and failed to consider the deceased veteran properly for accrued Special Monthly Compensation.

The established VA case law and regulations that VA broke are found within:

M21-1 Erratum Part IV Change 113 under 3.09 and 3.10. (enclosed)

Also within General Counsel Presedental Opinion # 30-97 (enclosed)

And also within various BVA decisions such as :

http://www.va.gov/ve...s01/0109438.txt
http://www.va.gov/ve...s02/0206948.txt
http://www.va.gov/ve...es4/9834165.txt
http://www.va.gov/ve...es2/0410177.txt

all available at your web site.

Also under established regulations and case law and auspices of the above regulations, the VA also failed to rate the veteranís significant and deadly heart disease causing his death due to VA medical care as stated within the Section 1151 award letter of Jan, 1998.

The veterans rated at 100% SC for PTSD had Section 1151 disabilities listed on the rating sheets of 1997-1998 as well over 100%.He received SSA for the CVA and then upon reconsideration he received SSA for the PTSD with an effective date a year prior to the CVA award.The CVA (Section 1151 CVA)and residuals are rated as 100% NSC on the rating sheet of January 1998.

100% SC PTSC plus 100% or more Section 1151 disabilities equals Special Monthly Compensation.

CHAMPVA (letter enclosed) also verified that the veteranís Section 1151 disabilities were 100% P & T per VA records. CHAMPVA was awarded to me based on Rodís 100% PTSD P & T rating.

The veteran was fully eligible for SMC consideration and I request these legal errors to be corrected and awarded to me as an accrued benefit under the auspices of 38 USC 5107."
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(I subsequently figured out the level of SMC at R-1 I think- forget-
and told them that the obvious "S" award was unacceptable to me in light of the veteran's significant disabilities under 1151 -independent of the 100% PTSD.
I asked for over $60,000 and referenced specific medical evidence to support that SMC level as accrued.


In the CUE I won some time ago -I used USA settlement papers and also US COVA Neal V Derwinski as evidence and stated the final decision date, the legal errors they committed and sent this as evidence to support that CUE.

There is significant info here under search feature as to CUE claims.

CUE claims should be short and to the legal point.
DTA regs and medical interpretations do not raise to CUE level.
CUEs are based on legal error regarding decisions based on the proven and established clinical record.

Edited by Berta, 06 August 2007 - 07:15 AM.