In this blog I wanted to share a couple of letters that came across my desk. These cases highlight some important aspects of dealing with the VA, specifically when it comes to pursuing a Clear and Unmistakable Error (CUE) and understanding the differences between a higher-level review and a supplemental claim. These can be tricky areas to navigate, but with the right approach, you can improve your chances of getting the benefits you deserve.
Case 1: Clear and Unmistakable Error (CUE)
The first case involves a veteran who suffered a knee dislocation many years ago while in service. This injury happened during a twisting incident, leading to chronic pain exacerbated by cold weather and overuse. Unfortunately, 22 years ago, the VA denied his disability claim, stating the injury was not service-connected and that there was no diagnosis to support his case.
When we revisited his C-file (the veteran’s claims file), it became clear that this decision was indeed a Clear and Unmistakable Error or CUE. For those unfamiliar with the term, a Clear and Unmistakable Error exists when there are three main criteria met:
- Failure to establish service connection: The VA failed to recognize that the injury was service-connected.
- Error based on the record and law at the time: The error occurred based on the evidence available and the laws in place at the time of the claim.
- Manifestly different outcome: Had the error not been made, the outcome would have been significantly different.
When we reviewed his C-file, we discovered that his knee injury was well-documented in his medical records at multiple points during his service. This evidence was available at the time the claim was initially filed, and the VA should have easily determined that his knee condition was service-connected. It was a clear oversight, so we brought this to the VA’s attention, arguing that this constituted a Clear and Unmistakable Error.
Interestingly, when we first filed this CUE claim with the VA, the representative we spoke with didn’t even know what a Clear and Unmistakable Error was. This just goes to show how complex and misunderstood these types of claims can be. We had to explain it, and even after that, there was some back and forth where the VA claimed they hadn’t received our paperwork. But with certified mail and tracking, we were able to prove otherwise.
Now we’re waiting for the VA’s decision, but we feel confident because the facts were known at the time the initial claim was filed. Had the VA properly reviewed the records, the veteran would have been entitled to a rating for his knee injury, potentially altering his benefits significantly over the past 20 years. So, stay tuned for the outcome of this one. It’s an example of why it’s critical to keep thorough records and never shy away from challenging a decision if there’s a potential for Clear and Unmistakable Error.
Case 2: Higher-Level Review vs. Supplemental Claim for a Mental Health Diagnosis
The second case is about a veteran dealing with a persistent depressive disorder, diagnosed as far back as 1980. His condition has progressively worsened over the years, evolving into what’s now considered a mood disorder characterized by severe depression and a loss of interest in usual activities. Unfortunately, the medications prescribed haven’t been effective for him. He’s undergone various psychological tests, including those for generalized anxiety disorder, but his depression remains persistent and debilitating.
This veteran’s question to me was whether he should file a higher-level review or a supplemental claim to increase his disability rating to 100%. Here’s where understanding the differences between these two options becomes essential:
- Higher-Level Review: This option doesn’t allow the submission of new evidence. The review is based solely on the existing evidence in the file. However, you can present legal arguments to support your case. The main advantage is that it’s typically a faster process.
- Supplemental Claim: With this option, you can submit new evidence along with legal arguments. It’s a more thorough review but can take longer due to the evaluation of additional evidence.
Given the veteran’s situation, my recommendation was to opt for a higher-level review but to craft a strong legal argument highlighting specific points in his existing medical records. By referencing exhibit A, B, C, etc., and pinpointing the parts of his medical history that illustrate the severity of his condition, we aimed to build a compelling case without submitting new evidence.
This strategy has worked well in the past because it directs the VA’s attention to the critical aspects of the file that support the veteran’s need for a higher rating. In this case, I believe a 100% rating is justified. Even though I’m not a doctor, I’ve reviewed his medical records extensively, and it’s apparent that his ability to perform daily activities is severely impaired. He cannot drive, attend family functions, or even go grocery shopping without supervision. His spouse handles his medical appointments, and he spends much of his time sleeping at home, which isn’t healthy for him.
The challenge with mental health ratings is that it’s often tough to achieve a 100% rating. However, considering the veteran’s long history of documented depression and the severe impact it has on his daily life, we believe we have a strong case. We’re hopeful that by presenting a well-argued legal brief referencing his existing medical evidence, we can secure the rating increase he deserves.
Final Thoughts
These cases highlight some of the challenges veterans face when dealing with the VA. Whether it’s identifying a clear and unmistakable error or deciding between a higher-level review and a supplemental claim, the process can be complicated. However, with persistence, thorough research, and a strong understanding of the legal arguments, it is possible to navigate these hurdles.
Contact Us for Help!
If you need assistance with filing or appealing VA disability claims, complete this form or give us a call at (229) 226-8183. If you’d like to see this blog in video format, you can watch it below. Please be sure to SUBSCRIBE to our YouTube channel and click the bell notification button so that you’re notified each time we publish a new video.