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2NDMARDIVDOC

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I submitted a CUE claim via FDC a few months back. I was granted a C&P exam for the issue. Regional office also requested a medical opinion from the examiner. The exam and the MO was very favorable. The claim is now in the "pending decision" phase. My question is, is it true that if my claim did not meet the requirement(s) for a CUE, would the VA have notified me? I have not received any notifications from them other than the exam. So does that mean they consider the CUE valid?

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  • HadIt.com Elder

I agree with you Ms berta

I had read some BVA CUE denials as well as awards because of the Regs changing ...before I submitted my PTSD Claim   they helped me a lot  and I learned some new exciting words too....:smile:

If a Veteran is denied for his claim  he should go to the BVA Denials and find the ones that pertain to his/her claim  denied and awards..it will sure help out.

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Hi guys. Thank you for the replies. I appreciate the time but things have gotten pretty twisted here. All I'm asking is this.... if someone files a CUE / reopening on a past denied claim, if that claim does not meet the requirements for a CUE.......YET IS ALLOWED A REOPENING FOR SERVICE CONNECTION CONSIDERATION, does the VA have to notify the Veteran via mail that it did not meet the CUE requirements PRIOR to the notification of whether or not the S/C for THAT perticular issue was awarded??

 

19 minutes ago, Buck52 said:

I agree with you Ms berta

I had read some BVA CUE denials as well as awards because of the Regs changing ...before I submitted my PTSD Claim   they helped me a lot  and I learned some new exciting words too....:smile:

If a Veteran is denied for his claim  he should go to the BVA Denials and find the ones that pertain to his/her claim  denied and awards..it will sure help out.

 

berta, buck

based on the replies which I greatly appreciate, I'm obviously not communicating my question correctly. I'll try and give it another go. First, please forget everything I've ever posted outside of this thread because this question has absolutely nothing to do with past topics, questions or PTSD. 

In 02 I was denied SC for a bladder issue. It was DX'd in service and I was in meds. I never disputed the denial. 

When I filed a unrelated claim a few months ago I mentioned it to my VSO and showed him my continuous records for the bladder condition which I still have and get meds for. 

I ecplsined to him that I BELIEVED the VA didn't see or use my discharge physical which contained additional info on my bladder condition. 

The VSO took all my past and current evidence regarding the bladder and filed for "bladder condition re-open / CUE" that quote is verbatim as to how the file was worded. 

A month later I was scheduled for a CP exam of the bladder which was scored very much in my favor as well as an established nexus and a positive medical opinion. 

Ok... that said, when regional received that claim, before anything else, if they didn't believe a CUE may have occurred, would they have notified me that the CUE was out of the question but they were going to allow the re-opening???? 

My claim for the bladder is in the pending decision phase so obviously they are at a minimum entertaining the reopening. Now that I have laid it all out, any thoughts on the CUE portion? 

 

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  • HadIt.com Elder

These BVA decision will help you .  just an example for the PTSD.

just google BVA Claim decision for Bladder Conditions  or secondary to

What ever your claiming, reading these BVA Decision will help you  theres vaulable information in them complete with the Regulations.#

First, a claimant may seek to have the claim readjudicated by submitting a request to reopen the claim based on new and material evidence; when such new and material evidence is received, a claim must be “reopened” by VA and readjudicated on a de novo basis.

19 However, when granting a petition to reopen, and granting the benefit after de novo consideration, VA cannot assign an effective date earlier than the date of receipt of the petition to reopen.20 Second, a claimant may seek revision of a final RO decision on the basis that it is the product of CUE

21 The most significant aspect of a CUE claim is that, if such a claim is granted, the prior final decision is reversed or amended and this action “has the same effect as if the decision had been made on the date of the prior decision.

”22 The significance of this rule in the effective date context is clear; it in effect alters the prior decision and vitiates its finality. Thus, a prior RO denial of a claim for service connection can be converted to a grant of service connection, and that grant of service connection is treated as if it were made in response to the previously filed claim that had originally been denied by the reversed decision. In these circumstances, the date of that previously filed claim can become the basis for the effective date of the grant of service connection.23 19 38 U.S.C. § 5108 (2006). Such a request to reopen is frequently referred to as a “petition to reopen” a previously denied claim. 20 Id. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333

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  • HadIt.com Elder

3.9  some CUE Guidlines. although this may not answer your question.

The Court has no jurisdiction to consider a CUE claim it in the first instance.  38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran's Court can exercise jurisdiction over it"); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that "[t]he necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue of 'clear and unmistakable error'").VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a "clear and unmistakable error" (often called a "CUE"). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right.  A true CUE is not common and is a difficult claim to win.

A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary.  38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411.  A CUE motion is a collateral attack on a final VA regional office decision or Board decision.  Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). 

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

 

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  • HadIt.com Elder

CTRINE 7 III. CUE IN UNADJUDICATED CLAIMS

 

The combination of the rules regarding pending claims, effective dates, CUE, finality and its exceptions, and the duty to sympathetically read or develop a claim to its optimum, contains an inherent tension.

This tension was revealed in a line of cases that addressed situations in which claimants had filed a previous claim that was not recognized as such by the RO and, therefore, was not adjudicated.30 Under the above rules, such a claim remains pending. However, once a subsequent claim for the same benefit is granted, with the basis of the effective date being the date of the subsequently filed claim, the issue arises as to how to challenge the effective date assigned on this basis.

As noted above, the only way to vitiate the finality of a prior unappealed RO decision for effective date purposes is to file a CUE claim seeking to reverse the prior decision and replace it (and therefore the assigned effective date) with a corrective decision.

 

31 However, in the case of a prior unadjudicated claim, there was no prior RO decision to attack on the basis of CUE.

In the remainder of this article, we will discuss the attempts of the Veterans Court and the Federal Circuit to grapple with this issue. As discussed below, the issue rose to the surface almost incidentally, beginning with simple observations by the Veterans Court that in certain cases in which a veteran makes a claim for an increased rating, where there is evidence of unemployability and the veteran meets the criteria for a total disability rating based on individual unemployability (TDIU), VA must consider the claim as one that includes a claim for a TDIU rating.32

The Federal Circuit then seemed to suggest that the means for challenging such a failure to adjudicate a claim was through a claim of CUE, despite the inherent contradiction in using a tool (CUE) designed to challenge a final decision to instead challenge a failure to make a decision in the first place.33 Ultimately, the Veterans Court’s 30 Norris v. West, 12 Vet. App. 413 (1999); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). See discussion infra notes 35 - 73 and accompanying text. 31 See supra notes 21 - 23 and accompany

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I think the CUE this vet filed had merit------if he worded it correctly and identified the legal error(s).

We have no idea what the CUE says.

Re -Opens require New and Material Evidence so if they re opened something, it must have been another claim because he sent them N & M evidence.

A claimant cannot support a CUE claim with New and Material  medical evidence.

A CUE claim decision rests on the established medical evidence,in VA's possession, at time of the alleged CUE decision.

Once piece of my evidence for one of my CUEs I did not find in my C file because the letter came here directly from a former VA Secretary.It was not in the RO's possession until I sent it in.

I sent VA a copy along with the proof of their other legal errors that I identified in the CUE, because 

"in VA's Possession" means anywhere at the VA....and the Secretary and the evidence he had that prompted the letter were in VA's possession in VACO Washington DC,when hes sent it.

But my C file also held a critical report they told me had never existed or ever been in VA's possession.

I used the 'non existent report' (obviously in VA';s possession since 1995 )for my AO IHD DIC claim.

Screw them. Multiple VA  individuals to include VA Medical/Legal division lied to me about this report many times but they didnt know I had the word of the VA Regional Counsel and the Director of the VAMC who prepared it.Counsel wanted to settle FTCA due to it 5 months after I filed my SF 95.

I regret I have gone off on a tangent here.........it sure pays to go through your  med recs and C files carefully..for established medical evidence they might well have ignored.

I am tired of repeating CUE criteria.BVA and CAVC decisions are great but those entities talk legalize.

The simple basics of CUE  is all simplified in the CUE forum.

 

 

Edited by Berta
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