I Was Just Informed That My Cue Claim Was Already Decieded

[mos1833]

this is crazy , i filed a cue in 2002,at the same time i appealed the same claim with new evidence and it was reopened and denied again,but they never said any thing about my cue claim. so i filed a request as to why ,

today i called to find out why its taking so long to get the information i requested.and john said i had already been informed of there decision in a letter they sent me ,

the letter they sent me was just a notice that they received my inquiry and gave it a number so i could follow it progress. the letter also had a copy of the last denial of my claim.

so john said today that the letter was to answer my request, he said that my cue was decided in the last decision of my claim, ( a copy was included in this letter ) and he said it was denied with-in that decision.

so i said that decision did not say any thing about my cue;

he said it didnt need to,he asured me that it had been decided even tho they didnt point it out.

i said a cue is a seperate claim , he said it wasent and was decided in the last decision.

he said ide need to reopen my back claim to get to the bottom of this.

he said he could do it for me over the phone, so i said o.k.

this cant be right. thanks

[vern2]

Bad news. You cannot file a CUE claim on an open claim until 1 year has passed from the date of a denial. If you appeal it it is not a cue.

Did anyone help you with this claim?

J

I just filed a CUE on claim that was denied 22 Sept 2013, so it has not been one year. My claim is still at RO, as filed a NOD, and heard nothing more from RO. Am I correct to assume that my CUE is not valid since one year has not passed since denial?

[john999]

Yes, the claim must be final and that means one year must have passed without any attempt to appeal the decision. Then the decision becomes final and you can file a CUE. Filing a CUE is a last resort. CUE rules are much stricter than regular VA claims. There are valid CUE claims, but the error must be very obvious. Things like "duty to assist" and "benefit of doubt" do not apply with a CUE. Much of my CUE was blown out of the water by CAVC claiming I was invoking "duty to assist". Now I am in Federal Court. If your CUE is really going to shake things up for the VA you will get mucho pushback.

John

[Berta]

If you are within the appeal period (which you are) you can fight the decision,beginning with filing the formal the NOD, and it appears you did that.

If the VA made a legal error to your detriment you could possibly ask them to CUE the decision within the appeal period.

You dont have much time. Since they have the NOD they might ignore the CUE you filed.

Both types of CUE claims have worked for me.

It is all in our CUE forum here.

BUT the NOD ,in my opinion, should be considered as the first avenue of attack.

Tell them why they are wrong and refer to and attach evidence that shows they are wrong.

A CUE cannot be based on medical evidence that has not been established., nor on a medical argument, or the way the VA weighed the evidence.

Is this the claim you were denied on?
"
Posted 27 July 2013 - 04:15 PM
FNG here. 30% SC for HTN, has gotten worse, heart problems, and chronic micro vascular disease, diastolic dysfunction stage 2, so why am I scheduled for a mental health exam as well as another c & p exam, and ekg-to measure ejection fraction? My claim was filed over one year ago, now a sudden flurry of tests from the VA. Called them and was told all claims over one year old are on fast track. "

ANother post you made stated:
Posted 28 May 2014 - 04:49 PM
"
Still no response to my October 2013 NOD, I have filed another CUE due to missing documentation "material facts", but heard nothing from RO. Would like to get this resolved B4 I die, since I am 66. If this drags on for 7-8 years or longer then the VA wins, as probably dead by then!



vern2"

If the VA had received "Material facts" aka probative evidence, and if they totally ignored that evidence in their decision, they had committed a CUE under violation of 38 CFR 4.1 et al.

To be more specific, it is a violation of 4.6:

http://www.law.cornell.edu/cfr/text/38/4.6

I got VA to CUE themselves in late 2011 under this violation ( in three weeks they changed my denial into an award) and I currently have a claim of this nature pending, with a template of the claim in our CUE forum.

38 CFR et al, does not contain any Duty to Assist criteria. It is established VA case law.

If VA can violate that regulation (and their M21--1MR version of it) and get away with it ( assuming the evidence they ignored is probative and compelling ..and they usually only violate this reg over the good stuff, )
they have insured, if the claimant does not fight back, that the claim will be continued to be denied.

Have you asked them o reconsider based on what they ignored?

Then again the reconsideration period is up when the NOD deadline is. I dont think you have that potential here.

It seemed to me from your above post that you were trying to get an increase or secondarys added to the 30 %.

Did they deny due to a C & P opinion? If so only an IMO from a real doctor can usually combat that.

Was the C & P doc a cardiologist? Or were they a PA or nurse......

I got a C & P trashed by the BVA because of a C & P like that. Since the PA who did the posthumous had no real cardio or endocrinology background , his opinion was speculative and the BVA agreed with me and they awarded on the 3 IMOs I had.

I have some medical background in cardiology.

"30% SC for HTN, has gotten worse, heart problems, and chronic micro vascular disease, diastolic dysfunction stage 2"

I do not see a nexus here between the HTN and the cardio problems.But I am not a doctor

Cardio "problems" is a very vague term.

It is certainly very possible however, but it will take a cardio doc to establish that nexus.

Is the HTN at a higher rating level now?

Have you checked the heart "problems " for rating info ,in the VA SRD here?

Do you have an IMO? Is that the material evidence they ignored?

Can you scan and attach and post the Reasons and Bases for the denial here with the evidence list?

(Cover C file # ,name and address before scanning it)

[vern2]

Yes, my 1st CUE alleges error in rating and misapplication of VA law- should have been rated at 60% instead of 30%. The form in my c-file is in reference to this CUE. I was/still asking question about the comment on the VA form about cest ...EPO 24, not sure what this means. My second CUE is on denial of claim with decision date of 22 Sept. 2013. My CUE is clear, ignored over 1/2 of the material facts of record, ignored all of my 200+pages of documentation that are crucial to my claim. This manifestly impacted my claim. The c-file copy sent to me after my claim does not contain any of this 200+ pages, yet I have activity records from VA that show date and time the VA received the documentation and I sent certified latter in July 13 telling them about the 2013 documentation, copy of this letter was in my c-file. I have not sent this CUE yet, as not one year, still hoping for favorable de novo DRO review. I pulled it after I saw one of forum posts, about the one year time frame for CUE notice.

Vern

[john999]

Just remember the CUE rules are the strictest rules. The burden of proof in on you. You get no duty to assist or benefit of doubt. The VA comes up with rules changes to defeat vets from gaining large retro payments. The VA just excluded my entire private doctor's report. They say no CUE because among other things the evidence that was excluded was debatable. That means a janitor could enter something in your in-patient file and that would make a ten page IME debatable.

[thomasc]

Hello mos1833,

I wonder if your VSO withdrew your CUE claim without your knowledge. VSOs make decisions on our behalf, and sometimes without telling Veterans.