Cue And Nod

[DC1775]

Hello Friends,

I have a question about CUE and filing a NOD. I'll try to explain and ask it as clear and simple as possible... but you know the way the VA is...nothing seems simple and clear!

I filed a claim for a service connected disability in 2002. It was denied and I did not appeal. I filed a new claim for the same disability. It was denied a few times...but finally granted a couple months ago.

I was granted 30% but I think that my claim warrants 50%, so I plan on filing a NOD to the 2009 decision for an increase.

Since my claim was finally granted, I'd like to reopen my claim from 2002 -- based on CUE.

Can I file a CUE and NOD in the same claim or do I need to file a an informal NOD and a completely different claim for CUE?

I'd appreciate any advice that anyone could offer!

Semper Fi

[Berta]

In my opinion that CUE you prepared is a BEAUTY!!!!!!!!!!!!!!!!!!!!!!

Fabulous!

I suggest to refer to the CUE in the NOD and vice versa but keep them separate ISSUES-

You could ask them to reconsider their decision and then only formally file the NOD if they dont work on the reconsideration and the year deadline approaches.

The EED the CUE is based on could be raised in the Recon Request too but still it is a separate issue.

They cant handle too much at a time.

One good thing if you chose NOD at this time- instead of recon request is that you could obtain a lawyer after filing the NOD.

A good lawyer would love this-

then again a good lawyer would get 20%

I think you did a superb job here.

Correct me if I am wrong-

you feel the medical evidence warrants a higher rating.

(only the medical evidence will determine that)

And you believe they should have given you SC when you first filed claim in 2002.

YES- I agree with you-make them rate you and pay you for that comp their CUE caused you to lose.

[jbasser]

I re-read your posting, and have a couple of questions if you don't mind.

It wasn't my service records that said I had bipolar at 19..it was the mental health records and letters from doctors and stated on my C&P exams and finally in my 2009 review where the VA recognized that i had bipolar at age 19.

You said to take regs at the time of my decision and how the outcome would be different. Do you think I did that with my claim for CUE that I posted on here?

I am filing for an increase on my recent rating through an informal NOD and requesting a review from the DRO. As far as the CUE goes, do I need to file a separate claim all together or can I include it with my NOD?

Sorry for all the questions...I started reading all of this again....and making think more and more! I do appreciate your advice though!

You can mention all the CAVC cases you want to, but in your case you must show them not only why, but how the cue was committed based on legal criteria. This criteria is to take the regs at the time of the decision and use them in a manner that would show how your claim's outcome would differ from the original decision. Yours is actually an easy one. You had Bi polar listed in the service record at 19 and you filed a claim for it. It was denied based on a ficticious statement.

This is not a point of how evidence was reviewed, it is a fact that had the evidence been reviewed, your outcome would have been different.

The same thing happened to me on My HTN claim. I had it in service, ( !7 of 19 BP readings were compensable) but to the RO there were no complaints, treatment and ect. I was awarded SC for it at a later date.

Go after your retro and eed.

Good Luck,

Keep us posted.

J

Your mental health record is part of the Service Record or SMR. Even t hough these records have different names they are all critical because they are part of the Service record. Mental health records handled a little different as they are usually placed in a separate location.

Like Berta said you have a good CUE claim and you should win.

J

[Pete53]

Berta:

It would seem to me that smart lawyers should be lined up to take Veterans Claims especially the older ones that the VA has fouled up as their fees would be 20% of 100;s of thousands of back pay just sitting and waiting to be harvested. A Veteran who has been spinning their wheels for years should not mind paying a Lawyer 20% especially if they rake in a big win.

I know that several on this Board have referred Lawyers and it helps the Lawyer and the client in my opinion. The ability for Veterans to hire a Lawyer was a good thing that came out of the Republican stranglehold that rammed it through Congress. They only did it cause they hate bureaucracies but I am ok with that so do I.

I used to say that to win you needed, medical evidence connected to your service a good IMO, a current diagnosis and now I add a good lawyer. Even for the Vets who do it themselves Lawyers help us all.

[Berta]

Pete I agree- and there are plenty of lawyers out there (some are wannabees though when it comes to VA 101)

willing to rake in some cash.

Something troubles me however-and I sure suuported the Lawyers for vets regs when they were proposed in 38 CFR.

There is actual advantage for a lawyer to put up wioth the way VA strings out a claim.

Once the POA is signed-the V could take a few more months or a few more years and the Lawyer reaps benefits of the larger 20% fee the longer the claim takes.

Although in some cases a lawyer is the answer to an award letter-

they do not subplant where an IMO is needed and probably would sure suggest getting one as well-you are right.

And by time of a CAVC filing- it is too late to send more evidence in lawyer or not-

I was helping a newby lawyer (he is legit and studying VA101)

and all I could see his chances were would involve a CAVC remand-

I pointed out the legfal errors in the BVA decision and he and another lawyer agreed with them-

the vet got a remand.

BUT the vet still has not established any valid nexus at all.

These remands on legal errors give one more bite to the apple but if the evidence still alludes the claim-the vet loses anyhow.

Lawyers cannot perform miracles.

No nexus-no comp.

[DC1775]

Thank you! I talked to my DAV rep today and he thought it was a pretty good CUE! He told me that I could file one NOD and raise both issues. I'm putting everything together tonight and filing it in the morning!

Thanks for the feedback!!

[DC1775]

I was reading up on the 'nexis letter', just now and saw something about specific language that needs to be used in my NOD for CUE. I don't have this exact language though. Will the VA deny or remand my claim if I don't have the exact language?

The examiner should

express their opinion as appropriate in

terms of "more likely than not" or "as

least as likely as not" or "not as least

as likely as not" where: More likely

than not equal the probability is greater

than 50 percent; as least as likely as

not equal the probability is equal to or

greater than 50 percent; and not as least

as likely as not equal the probability is

less than 50 percent