Va Doctor Did Not Have Service Medical Records
Posted 07 November 2010 - 12:10 PM
Posted 07 November 2010 - 12:19 PM
I think you would be going about it the wrong way in filing a CUE claim for your EED.
If you have SMR's / STR's that were not of record in the original decision, that
are strong enough to have gotten an issue granted SC, then I would file a 21-4138
and refer to 38 CFR 3.156 © and request the EED due to these records.
CUE is a much harder ladder to try and climb.
Hope this helps a vet.
Posted 07 November 2010 - 02:17 PM
I am in the process of going through the Appears process for an increase for bilateral knee disability. I think some of you will remember when I asked about a CUE claim about 6 month ago. I have been going through my C-File for evidence. I was discharged in November 1974. I filed a claim in 1975. I am looking at the VA C&P exam results for Osgood Schlatters Disease. The Rating Decision stated the Evidence of Record is insufficient to substantiate the clain aggravation of veteran's pre-service knee condition and the Veterans was hopitalized for myocarditis subsequent to to service. In 1999 when I reopen the case. The VA wrote me and ask me if I had a copy of my Service Medical Records because they would have to send and request them from the Air Force. I am getting the impression from this that the 1976 decision was made without my service record. I am considering filing a CUE claim based on the fact that all the evidence was not before the Rating specialist. I was granted service connection in 2001 after a long and hard fight. Also when the VA denied me for Myocarditis they fell to realize that the claim was filed within the presumptive period. My understanding is this condition is considered to be one of the presumptive condition and the VA failed to recognized this. Although I was considered to be one of the lucky ones be cause I did not have any permanment damage to my heart i was still disabled for about 3 months. Although the VA still denied my claim in 1999 I won the case on appeal. At the time I did not know about asking for an eariler effective date. My question is should I asked the V A to CUE themselves and with this kind of clear evidence, do you think the VA will still try to drag this out because it is very clear they did not have my service medical records and made a decision without this knowledge. Any advice with be greatly appreciated. I don't think I will be able to CUE this claim until I get through the current appeal concerning my knee disability. This involve where the VA had rated my knee disability un range of motion using limitation of flexion but my last C& P exam the doctor stated my range of motion under limitation of extension is limited to 20 degrees which would give me 30%. I did not think this would be such a problem if the doctor stated this in his C&P exam report. Any insight on the range of motion limitation which change for flexion to extension. I can't see the problem and the VA will not give me a clear and percise answer. this has been going on over 3 years. When I responded to the SSOC, I pointed out to the VA what the chart they had on the SSOC stated and that if another DC in this case 5261 would give me a higher rating the VA should revied the rating and what the GC stated about rating knee disabilities. I know this is the wrong forum for the last part of this topic but I have learned so much and how much research is required is to get the VA to get it right from this web site and froums. Thank again everybody for all the help. Since I join this form my percentage has went from 40% to 60%.
Posted 07 November 2010 - 06:49 PM
Thank you again,
Posted 08 November 2010 - 10:50 AM
The error however must have manifestly altered the outcome-
meaning their error cost yo compensation.
There is considerable info here on CUE claims and many BVA decision posted that show how they can succeed and why many fail.
It has to be a legal error in a final decision that involves the regulations at time of the alleged CUE.
This was my orginal and first claim when the doctor made the decision and did not refer to my Service Medical Records."
Were they missing? If so the recent post here in Claims Research regarding Evidence (from Allan) might help you.
Or search hadit for "newly discovered Service Records" as this might be better approach then CUE claim.
Posted 08 November 2010 - 12:51 PM