CUE

[chaselittle]

Greetings. Seeking opinions from you. File a claim in 97 that was denied and became final. I try to reopen it in 2000 and it got denied and final in 2004. In 2006 i try once again to reopen and got denied. I appeal it within the year. BVA remand it in 2013. BVA states that the RO used private, VA record and in service records in determined their decision. The 2004 decision letter did not list in service records were used. The in service records were vital and would established that disability in incurred in service and link to my current disability. Is this grounds for CUE? Thank you

[Berta]

Can you give us the Docket Number and citation number for the BVA decision?

." BVA remand it in 2013"

I am assuming the RO continued the denial....? Did you appeal the last RO denial?

You stated: "The 2004 decision letter did not list in service records were used. The in service records were vital and would established that disability in incurred in service and link to my current disability. Is this grounds for CUE?"

 Not enough info here to even take a guess, and  it is the 2004 decision, and any more  recent RO decisions and also a link to or Citation and Docket # for the BVA case that will determine if a CUE occured.

We need to see their reasons and bases and Evidence list before we can really advise you.

"The 2004 decision letter did not list in service records were used."

Did your I-9 appeal state that? Did VA remand for them to consider your service records?

Did the RO at that point, consider your service records and still deny the claim?

Can you scan and attach here , the RO decisions as to the reasons for the denials ?

 

Cover C file # name ect... prior to scanning it.

The BVA remand , we can find with the Docket/ Citation #  and that will tell us more.

At 90% now was this in regards to a TDIU claim?  

When they awarded the SC 90% or any ratings prior to the 90% obviously  VA had to have your SMRs to establish that nexus... 

 

 

 

 

 

Edited February 23, 2018 by Berta
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[broncovet]

Frankly, I dont see a need for CUE, but I love Berta's thoroughness and I admit its highly likely there is something there that you did not describe.  

If you reopen due to N and M evidence, and the VA denies (to reopen), the procedure is to file a nod and dispute this denial.  You indicated that you timely appealed this denial, so, you dont need to file a cue if the appeal is already pending.  

Here is why:

   Cue is a stricter "standard of review" than a "normal" appeal.  The bar is lower with a normal appeal, and you need only jump over the "benefit of the doubt", whereas with a cue you need to meet the higher "undebatable" standard of review.  

    For me, getting my benefits is already challenging enough, and I am not going to "raise the bar" and make it yet more difficult UNLESS there is a compelling reason.  I dont see a compelling reason for you to raise the standard of review, based on what you posted, but instead simply recommend you continue with your appeal(s).  

    Remember, too, Cue is "all about" effective dates, not about service connection or disability percentage.  You see, if you are eligible for "cue" then you are also eligible for "regular" benefits, but the reverse is not necessarily true.  In other words, just because you meet the criteria for benefits, does not mean you automatically meet the criteria for CUE.  

That is my 2 cents.  Of course, if Berta finds a Cue error, then you could go that route if it meant an earlier effective date.  

[Lemuel]

The difference between CUE and N and M evidence is the date of the rating.  CUE takes it back to the claim on which the CUE was made.  N and M is dated from the claim of N and M.  Both should be alleged if in existence.  Or at least that is the way I'm playing it on my CUE claims, one of which there is N and M evidence in the BVA remand.

[broncovet]

Lemeul

   Not exactly.  Cue should yield the exact same effective date as 38 cfr 3.156 New and material evidence in either of these two senarios:

1.  The new evidence submitted was a "pending claim".  38 cfr 3.156b.  

2.  The new evidence was "new service records" 38 cfr 3.156 c.  

    The only advantage of cue over 3.156 is if your new evidence is NOT new service records and the claim or appeals are "not pending".  

   If the claim is not pending and not new service records, then you are correct that the effective date will be the date you file new evidence.  

[Lemuel]

Bronco, you stated my understanding more clearly and with reference.  For CUE any new evidence has to be immaterial to the evidence that was there when the erroneous decision was made.  But if the evidence that was there on the CUE claim is deemed insufficient then new evidence can be used on a new claim.

I'm 76 and so while I think the evidence is clear enough without the new evidence I put both to at least get the date of the new evidence claim.

Evidence that was in the military inpatient records is not new evidence.  It was available to the VA to be retrieved.  The Hawaii VARO requested the IPR but didn't wait for it before making the decision.  So I have both, old record evidence and new record evidence for my claim of SC for Cervical Disc Disease.  The old evidence for CUE is from my first claim which has a date of my discharge date.  The new evidence didn't make the file until 2003 when the disc ruptured and relieved the loss of sensation on the back of the left arm.  The new evidence affirms the loss of sensation was from stenosis of that nerve. Because there wasn't an X-ray report noting a herniated disc and the impression was the loss of sensation was from lower nerve damage my CUE is probably on shaky grounds for from a date prior to my first claim in 1990 for Spinal Disc Disease.

I don't know which way the CAVC will decide.  And I have the Tort case which is based on Section 4 of the 14th Amendment on a "Bivens" Constitutional Law principal (see attached) which may make the BVA & CAVC appeals for CUE moot.  The CUE claim is just in an NOD status at the moment.  TDIU is in remand.  A CUE for tinnitus dating is before the CAVC. 

My hearing complaint for tinnitus is in a EENT consult that took place 9 years prior to my discharge.  The adjudicator didn't register the cause of my hearing loss complaint properly as "with tinnitus, noise induced."  When the liberalization was done 2 years after my discharge, because I wasn't specifically SC for 0% for tinnitus in that decision I was not included in the liberalization and granted the 10%. 

With my hearing loss at 20% I lost it and then regained it on a liberalization from a court decision that now applies to all ratings.  If you were rated for, at that time 3 years, but now I think for conditions other than hearing it is 10 years, it then becomes permanent.

Bivens v. Six FBI PRIMARY CASE.pdf

Edited February 24, 2018 by Lemuel
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[Lemuel]

Bronco, I wonder what you and Berta think, after reading Bivens on the following questions of reciprocity and the reasonable person in Common Law:

1.  The VA has no time limitation on decisions and my claim for TDIU has languished since 1987.  Will the Court grant tolling of the time limitation from the standard of reciprocity?

2.  The VA has been provably deceptive and delaying.  Will the "common law reasonable person" provide relief?

Common Law is why courts go to previous decisions for guidance and is Constitutionally grounded in U S Law.  Reciprocity and the "reasonable person" are long standing principals as I understand it, in Common Law frequently cited.  I'll have to find specific decisions citing the two principals of common law not necessarily in the same decision.  Only 10 days left.  May have to apply for an extension or raise those principal citations later while stating them in my brief.

These are the two basic questions asserting the Bivens citation into a decision on several sections of the Constitution:

Attached is the beginning development of my brief in response to the U S's brief to dismiss also attached.

20180301 Response motion to dismiss.docx

20180213 U S Motion to dismiss brief.pdf

Edited February 24, 2018 by Lemuel
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