ptsd PTSD CUE Help

[agcgonz]

I have been fighting the St. Petersburg RO with my PTSD for six years now.  I failed to submit a NOD at the time (2010) denying TDIU.. After reading several of fellow vets on this board  i see I need to now to make a motion of CUE. As a result I have drafted a motion using the advice from Bertha, Tbird and others experts. I'll like to have the team review what i drafted so far for advice and counsel.  If there is anyone that agrees I'll post a copy for all to comments.

 

 

 

 

[Berta]

If you can attach it here, we can comment on it.

A Motion under CUE is for the BVA.

A regular CUE on a VARO unappealed decision is sent to the RO who made the decision.

They would basically be the same thing, but BVA wants CUEs against them to take the form of a Motion.

It is an easy template and I posted one here long ago.

[agcgonz]

Thanks Bertha.  Attached is  my draft. in the meantime I'll  search for the template you mentioned.

 

 

 

CUE RD 2011 Draft.pdf

[broncovet]

I like your rough draft.  Do you have a copy of your C file?  This is important.  You need to know what evidence the VA knows about.  Here is why:

If your C file is missing evidence, then the procedure is to reopen using 38 CFR 3.156.  "Missing Evidence" does not meet the CUE standard of review.  "missing Evidence" that you resubmit is corrected by reopening after adding evidence, not with CUE. 

CUE assumes they have the evidence and made an error.  If you do the wrong one (Cue or 3.156), you probably wont get the result you want. 

The good news is that resubmitting (reopening) under 3.156, can have the same effect as CUE, and win you an eed, and YOU KEEP THE BENEFIT OF THE DOUBT with 3.156, where you give up BOD with CUE. 

Caveat:  There are 2 parts of 3.156:  1) submitting new evidence, and 2) submitting new service records.  Number 2 is much more favorable to the Veteran. 

 

Edited February 7, 2016 by broncovet

[rwskitch]

...I can definitely relate bro, I've had the same problem for the last 9 years, my claim was remanded back from the BVA and the imported 'out of town C&P hit man' denied me again, claiming 2 mental disorders, #1 - Unspecified Anxiety Disorder, #2 - Unspecified Depressive Disorder instead of PTSD...!

[agcgonz]

Yes but  I didn't see my employment history I submitted and the SS statement at the time.

[Berta]

I always have started a CUE on past decisions with, This is a claim of Clear and Unmistakable Error (CUE) under auspices of 38 USC 5109 ( a).

https://www.law.cornell.edu/uscode/text/38/5109A

You don’t need the Motion template.That is for BVA decisions.

I also suggest that you peal this down as much as you can.

CUEs should be short and sweet.

Are you employed currently?

“The 2012 Social Security

Administration records clearly indicate the Veteran’s earned annual income had been rapidly

declining since 2008 – ending to its lowest EAI in 2011-- well below the poverty threshold standard.”

Did it go higher than subsequent annual GPA poverty wage standards since 2011?

“Since the SRBO failed to consider and evaluate material evidence

on the record when deciding the Claimant’s case, the Claimant was denied the proper rating he was entitled

to.  “

A failure to do that is a CUE basis. Cite 38 CFR 4.6 if it violates that specific regulation.