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CUE Clear and Unmistakable Error
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686 questions in this forum
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Two recent BVA awards of CUE
There is often nothing better to understand CUE than be willing to read BVA decision that deny or grant CUE claims. I will try to add more to this thread in time and have searchable other BVA CUE awards here as well. These are recent 2021 decision. These are two recent BVA CUE awards and they contain legal citations and a clear statement of why these CUEs succeeded. They contain in essense a template for the specific CUE , and legal citations and rationale as to why the CUE succeeded. Citation Nr: A21006352 Decision Date: 03/23/21 Archive Date: 03/23/21 DOCKET NO. 200131-60109 DATE: March 23, 2021 "ORDER Entitleme…
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Rater substituted his own opinion for the C&P Examiner's opinion
I have searched everywhere I can think of for an answer to this question. I'm posting it under CUE because when I find the answer, it will assist me in writing my CUE. Question: What is it called, and/or what is the violation when a rater substitutes his own opinion in place of the doctor's written opinion. I was denied service connection for MDD/Anxiety, even though the C&P Examining Psych doc said in his opinion MDD was secondary to military service due to long deployments. The rater ignored the doctor's opinion, ignored I had been medicated for years, as shown in my SMRs, and was still medicated at the C&P. The rater cherry picked little things …
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Sleep Apnea
i havent posted in a while. i was denied my claim for sleep apnea and got help from the state VSO because i couldnt get the vfw or DAV to return my phone calls. i in the army national guard. i was in 03-09 and was deployed to Iraq in 07-08. upon return i immediately went to the va and filed for benefits for health care. i was injured in iraq and filed claims for those. i also was having problems sleeping and the VA gave me a sleep study(4 months after discharge from active duty) and was diagnosed with sleep apnea. i filed a claim and it was denied. years have gone by since then and i was trying to get a claim for my sleep apnea once more. last year i submitted…
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CUE Template
https://community.hadit.com/topic/83968-clear-unmistakable-errors/#comment-505276 The CUE I wrote is in this thread. It is almost impossible to find my templates and CUE claims here. MEGA Retro back to 1969.
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HLR
Hello, It is nice to be here. I think I posted in the wrong area. Please forgive me. I’m having difficulty learning how to post something. I was approved for SMC L1 and put in a request for a half step due to a stand alone condition. This turned into a Higher Level Review. The VA stated that the rater used things that were not service related. I have 3 different cancers, diabetes and a stroke that are not rated at this time. I am a 100% permanent and total vet with many spine and neck issues that effect me an am also rated 100% for stand alone PTSD. Due to my many nerve a disc problems, I am bedridden with loss of use of my legs. My wife is physician that has to qui…
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Planning ahead for CUE
I like to lay punji pits for VA raters. Here's a classic. I knew my Blue Water Vet had filed for MDD 2ndy to IHD back in 2002 when he filed his original claims (and lost). He wasn't boots on the ground so they hosed him with the Haas v. Peake decision. When I reopened in 3/2020 after the new Procopio Nehmer rules, I left out the MDD claim because, by rights, the rater would be obligated to rate it under §3.310 with the effective date of 2002. There was big money on this-like $250K. These weasels carefully rated him such that he was below 50% after 2006 thus depriving him of his CRDP. CRDP= concurrent receipt of both retired and VA compensation pay. If you are rated below…
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BVA CUE ,38 CFR 3.156, Retro back to 1985
CUE =BVA - retro to 1985 for PTSD There are over 2,000 CUE decisions at the BVA for 2020. Many of them were denied and those cases reveal why they were denied. But persistence pays off: This vet would not give up- the case shows the rigamorale he went through. "ORDER The Veteran’s motion to revise the March 2007 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective October 7, 2005, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of April 9, 1985, but no earlier, for the award of service connection for PTSD, is assigned. " https://www.va…
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My final post on CUE Claims
We get CUE claims questions from time to time. Some vets are willing to go over the CUE regulations, some don’t. It will help if you can attach the decision that you feel holds a CUE and the evidence list. Cover your C file #, name address prior to scanning it. Tell us exactly what you think the Legal error is in the decision. This goes for old denials or awards as well as for recent denials or awards. But better yet, ask your vet rep or VSO to help you-they have more access to your info than we can get. Regulations: (a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmista…
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Finally received my C file.
I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder. In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?
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38 USC 5109A CUE
This regulation was presently incorrectly here some time ago. It clearly reflects the change to M21-1MR and if any agent or vet rep ,lawyer, VSO says you cannot file CUE on a recent decision- whether award or denial, whip this out and show it to them: https://www.law.cornell.edu/uscode/text/38/5109A 38 U.S. Code § 5109A.Revision of decisions on grounds of clear and unmistakable error U.S. Code Notes prev | next "(a) A decision by the Secretary under this chapter is subject…
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Special Reduction Review
I received the image below and I have been googling it all day and have not found this anywhere. Has anyone seen this before and if so what is happening?
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VA's DRO admitted error occurred
In August 2020, I filed a HLR for heart attack and was just called by a DRO. The DRO indicated the decision was in error because it was based solely on the wrong condition (atrial fibrillation) and did not address the heart attack at all. They will go over everything, including the strong "more likely than not" IMO from my non-VA board certified doctor. They said they would try to grant based off of the evidence of record. Of course, if granted, I would get another heart C&P for rating purposed. Should know something within the next couple of weeks.
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