CUE: How detailed should my assertions be?

[propp3]

Filed for a CUE last July, multiple assertions/issues, all relation to my original denial of a knee claim(never appealed) and a RO decision(on remand) to increase my % for my back condition, also final after BVA appellate review. All issues are old, dating back to '92(knee claim) '95(BVA remand to the RO re: my back) and '96(the BVA appellate review).

I've don lots of case law and regulation research, applicable at the time, supporting my assertions..all my cites/etc back up my assertions of what should have been done/followed, and what was done or not done, wrong(cites of case law, COVA decisions).

The RO passed(said nope), the DRO did not find in my favor(awaiting SOC), and I filed my VA-9/appeal to the BVA. Now I'm completing my summary, further presentation of issues, evidence in support, all my cites, etc.

My question? How detailed should I be? I've rec'd advice to keep it short, brief...a few pages. But every research I done about CUE says otherwise...explaining the need for detail/detail/detail. My statement/letter will probably end up after editing at a good 30-40 pages in length. Even with editing to eliminate redundancy, I feel all the issues I've asserted and a forensic eval of the evidence...with supporting case law/regulation/BVA remand instruction('95) cites included...is all necessary and important in making my case.

As I responded to one who advised almost absolute brevity....brevity hasn't accomplished shit for me in the past. After reading my VSO briefs and quotes of case law(about 2 pages), I was stunned by the *lack* of argument. 20 years ago I didn't know any better and thought and relied on the VSO(mine is DAV) as the *duty expert*. But like I said, it didn't work then(brevity) and I have little confidence it'll work now. Hell, I just recently found a case cite I think is of *extreme* importance to my CUE claim(Hyder v. Derwinski), and my VSO didn't mention...discuss with me, or even put forth in argument. I met my VSO appeal specialist for the 1st time only 20 minutes before my DRO hearing last June.

Opinions, advice? Anyone here win a claim of CUE and if so, how detailed were your assertions and arguments and presentation of evidence?

Prop

[pwrslm]

Pull up any similar case that you can find in the CAVC on the subject matter.  Note how extensive they are, and how direct and to the point their decisions are.  They don't cite paragraphs of other case law unless it is absolutely needed, only a sentences most of the time, that directly apply to the current case.

Same thing with BVA cases.  Use enough that nobody can question what the meaning is, brevity is courtesy.  30 or 40 pages would need be a very complex case with a long history.  Figure on a format.  Always use names, dates and times whenever you can.  Copy and paste their own words at every opportunity, as brief as possible.

1. What they did.

2.  What was wrong and why. Cite violations here.

3.  What is right, with citations showing what should have been done according to USC/CFR/M21.

4. How you want it corrected, and why.

 

Same format, for every topical issue you want corrected.

Edited November 12, 2015 by pwrslm

[Berta]

"Opinions, advice? Anyone here win a claim of CUE and if so, how detailed were your assertions and arguments and presentation of evidence?"

yeah, I have won a few, helped some members here who won CUE and my daughter says the NOD I prepared for her contained a statement of CUE as well.

My assertions were very brief.After I charged them with violation under auspices of CUE ( 38 USC 5109A)

I referred to and attached the decision I cued, stated the exact regulations they broke , in some cases copied and pasted the regs and the hyperspace link or attached then instead, and told them how they had caused an altered outcome.

I also used M21-1 MR too for some of them.

If you carefully search our CUE forum I probably posted there my shortest CUE claims.

The medical evidence must have been established at time of the CUE and in VA's possession at that time.

A copy of the decision being reffered to should cover that.

But not always. I won one CUE on a disability that had no rating or percentage at all on the rating sheet but had been established, ,by medical evidence, at time of the decision.

 

[broncovet]

Good answers, Pwrslm, and, as usual, Berta.  "Just the facts, maam".  

Simply show how their decision, which stated, "xxxx" (quote the decision)  violated Regulation 38 CFR   3. abc   which states, "yyyy".  (quote the regulation in conflict with your decision).  

You need to understand that CUE is a "standard of review" and has a specific "legal defination".  :  

a. It does not mean they failed in their Duty to assist.

b.  It does not mean you think you should have got 50 percent and the rater gave you 30 percent.   

Instead, CUE must be:

1.  Undebatable.

2.  The error must be "outcome determinative".  The RO decison that misspelled  "Reegional Office" is irrelevant.  

3.  Based on the laws and facts available AT THE TIME OF your alleged CUE.  

Save some time and space keeping to the criteria for CUE and dont waste your time on "non criteria" such as your opinion.  They dont care your opininion! They dont care about my opinion or Berta's either.  

 

[broncovet]

CUE is used almost exclusively to try to win an EED.  Example:

You get denied for knee issue.  Many years later, the VARO awards you on knee issue.  

You appeal the effective date of the award, as you can point out theVA already admitted its service connected in the most recent decision.  Remember, VA wont dispute what VA says, they will dispute what you say.  That is why you use their words in the decision against them.    

Now, you have the task of finding an error in the early RO decision that MEETS THE CRITERIA FOR CUE STANDARD OF REVIEW.   

Not  just "any error", but an error rising to the CUE standard.  

You probably want to forget about the alleged CUE errors disputing the disability percentage, those are usually judgement calls, which dont meet CUE standard of review.    

Edited November 12, 2015 by broncovet

[HitemStraight]

Broncovet is correct ..... CUE must be a clear error in interpreting the law. I won my CUE in two weeks time. It was a clear error in that they did not apply the bilateral factor which made a big change in the outcome. I kept the actual CUE claim to four pages plus copies of evidence (exhibits) supporting the error in the claim. Good luck !!

[FormerMember]

One thing few realize about CUE. If you filed in 92 and didn't appeal, the claim "died". If your reopen the same thing in 96 and lose, then take it to the BVA and lose, it's dead.   Once it has been adjudicated at the BVA, you can never disturb the 92 RO ruling. You can file CUE on the 96 appeal but not the underlying 92 decision.