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More on Cue from M21. 7. Clear and Unmistakable Error (CUE) Introduction This topic contains general information on CUE per 38 CFR 3.105(a), including • the definition of the term clear and unmistakable error • the provisions of 38 CFR 3.105(a) • the determination requirements • identifying a CUE • handling allegations of CUE • determining a case of CUE • handling decisions made by Rating Veterans Service Representatives (RVSRs) • applying the benefit-of-the-doubt rule • revising prior decisions, and • approval of ratings prepared under 38 CFR 3.101(a). Change Date December 13, 2005 a. Definition: Clear and Unmistakable Error A clear and unmistakable error (CUE) is an error that is undebatable in that a reasonable mind can only conclude that the original decision was fatally flawed at the time it was made. b. Provisions of 38 CFR 3.105(a) 38 CFR 3.105(a) provides that if clear and unmistakable error is established in a previous rating determination, then the • prior decision is reversed or amended, and • effect is the same as if the corrected decision had been made on the date of the reversed decision. Continued on next page 7. Clear and Unmistakable Error (CUE), Continued c. Determination Requirements A CUE determination must be based on the record and the law that existed at the time of the prior decision. In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim. Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim. d. Identifying a CUE A CUE exists if • there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made • Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule • VA overlooked material facts of record, or • VA failed to apply or incorrectly applied the appropriate laws or regulations. Note: If the claimant contends that VA’s failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced. References: For more information on • CUE, see 38 CFR 3.105(a) • potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and • CUEs based on VA’s constructive notice of medical records, see  VAOPGCPREC 12-95, and  M21-1MR, Part III, Subpart iv, 1.3. Continued on next page 7. Clear and Unmistakable Error (CUE), Continued e. Handling Allegations of CUE Determine the precise nature of the claim when CUE is alleged. Regional offices (ROs) or the Board of Veterans’ Appeals (BVA) will deny claims of CUE if the claimants do not specify the factual or legal errors at issue. A claimant is not entitled to raise a particular claim of CUE again once there has been a final decision denying that same CUE claim. If the CUE alleged is different from a CUE issue previously rejected, a rating is needed to determine whether or not a CUE was made on the new issue. f. Determining a Case of CUE When determining whether there is a CUE • consider the  law that existed at the time of the prior decision, and  full record that was before the rating activity at the time of the prior decision, and • determine whether the error would have by necessity changed the original rating decision. Note: Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised. g. Handling Decisions Made by Rating Veterans Service Representatives (RVSRs) Decisions based on the judgment of the RVSR, such as the weight given to the evidence, cannot be reversed on the basis of CUE unless the decision is the result of misapplication of directives, laws, or regulations. Continued on next page 7. Clear and Unmistakable Error (CUE), Continued h. Applying the Benefit-of-the-Doubt Rule The benefit-of-the doubt rule of 38 U.S.C. 5107(:) is not applicable to a CUE determination since • an error either undebatably exists, or • there was no error within the meaning of 38 CFR 3.105(a). Reference: For more information on applying the benefit-of-the-doubt rule, see • Russell v. Principi, 3 Vet. App. 310 (1992) • 38 CFR 3.105(a), and • 38 U.S.C. 5107(B). i. Revising Prior Decisions Revise a prior decision to conform to what the decision should have been once a determination is made that there was a CUE in that decision. j. Approval of Ratings Prepared Under 38 CFR 3.105(a) All rating decisions prepared by RVSRs under 38 CFR 3.105(a) require the approval of the VSCM or designee at the Coach level or higher. Ratings prepared by DROs would require the approval of the VSCM or Assistant VSCM if they would effect • severance of service connection, or • a reduction in evaluation of an SC disability(ies). Exception: Approval of the VSCM or designee is not necessary if the rating is the result of a Board of Veterans Appeals or Court of Veterans Appeals ratings decision. Reference: For more information on CUEs involving rating issues, see M21-1MR, Part I, 5.C.13.f.

That still is not a Cue. That would be a reconsideration. The claim would not have been final unless the 1 year period had passed. Even though a CUE was onvolved and it should be addressed by the rating official upon doing the reconsideration during the 1 year time limit. It the decision is past the 1 year stage and is final. Then Cue can be persued.

There are some attorneys that are licensed medical Doctors who have changed their occupation to assist Social Security claimants. These persons having the Medical Knowledge would greatly benefit any vet overexisting the services of any representative either attorney, or Veterans representative.

A Cue is a collataral attack on a decision deemed final. A claim in appeal is not final. You cannot file a CUE claim unless the decision was a final decision. However, The VARO can call CUE at anytime it deems necessary.

First of all do not rush into dumping the Rep, He probally thought he was doing you a good thing and does not understand. Call him up and ask him to withdraw the Claim today and ask him to explain it in writing and get a confirmation signature from the VARO service Center Manager that the claim has been withdrawn. ALso explainto the DAV Rep that if you lose any benefits resulting from their error that you are prepared to persue legal action against them to recoup any benefits lost. ( That can be done) You may want to hold that card until he shows his hand. He may realize his error and fix it pronto. If he does not, Lay it on him. After you get your satisfaction, Then proceed to drop the DAV. I have always stated here on hadit to only use VSO as secretarys and file everything direct yourself. Only the Vet can be sasured he is correct and Never trust anyone with subjects that affect a persons livelyhood and well being. Take no prisoners for VSO's are not part of the Geneva Convention.

Medical Jig Saw Puzzle. He needs to map the entire history of the hearing loss and then show it to a MD and get a least as likely as not related to Aircraft Engine Noise.Needs to show his occupations since service and if there are any that severe noise, be cautious for VA rebuttal of claim compared to post service noise exposure. SMR should be obtained also showing complaints to Navy medical personnel. This can be done even for his age, the hearing loss

CAvman, Be watchful for the VA loves to play YO YO with Blood pressure readings. If the readings dip below the 109 mark for Diastolic for several occasions they will lower the rating to 10 percentage.

Good Idea Rob, I will start on Chandler. Copy that letter to Jim Bunning.

I believe any hospital has the right to run a Toxicity Screen as well as an Aids test on Patients. Usually the Emergency rooms do that. They only do it if they suspect a serious life threatning illness or they are brought in by the Police following an accident and are suspected of operrating a Vehicle under the influence. Do not be taking Marijuana and get into an auto accident and Kill someone. People go to prison every day for doing the same.

I woukd look at the Lungs, Opiates effect the Lung. Can Cause Pulmonary Hypertension after Long Stabnding use. Of Course Pulmonary conditions aggrevate the heart and Vise Versa.

John, HTN is the abbreviaton for Hypertension, IBS is the Abbreviation for Irritable Bowell Syndrome. Are they service connected?

Lori, Heres to a Job well done and Merry Christmas. I am not sure about Arizona, But I Know that My home state allows children of 100% Service connected Veterans to attend State Universities tuition free. ALso chapter 35 benefits can be used for the Kids College. Look at your states website under Veterans Benefits. Hope the Retro hits the bank before Christmas. It took mine about 10 days.

John how right you are, They hit me with that last time i visited. I was even given some medicine to take.

Pete, could it be that the VA hospitals are getting Veteran Friendly, I sure hope so. Ihave actually had only one bad experience at a VA hospital. The Rest were OK. Some were downright plesant. I would like to see it carry over to the Regional offices and the claims personnel. But I realize that that may be whishful thinking. Good luck with the Dentist and Enjoy Mexico. John

FLHRCI Ask your Doctor to check on the Metropolol. Hypotension is a result of the Drug slowing down the heart rate. Are you sure about the Dosage on that one? It is usually 50/100/150/200 mg. Also for your question for Neurologic conditions questionaire, Just gop to the directives and read the schedule of ratings for neurological impairments and use that as a guide. John

You need to jump start the VA by going outside for a second opinion. Go see a board certified neurologist or if you can afford it, get an MRI and call Dr Bash. This is right down his alley. He can diagnose what yuou have where you have it and probally which nerve is pinched. Good luck

Jay, The VA rates Degenerative Arthritis based on limitation of motion. See the ratings below. It is called Degenerative joint disease. If you have any nerve involvement, they will rate that Separate. If you suffered an injury, they usually call it traumatic arthritis. It is an advancement of Arthritis at a much younger age due to accident or injury. http://ecfr.gpoaccess.gov/cgi/t/text/text-...0.1.1.5.2.96.26

Great Job Kenny, your almost there, Keep on throwing punches and eventually your opponent will fall down.

Rdawg, This guy has been smoking his lunch. If you really want to win your claim, I would advise you to get agressive as well as assertive. I tried the approach you mentioned, It got me good answers on the phone, But when push came to shove, I had to get assertive brcause there is a perception within the VA that looks upon Veterans claims in the negative abstract. They are always attempting to find equal negative evidence in order to disallow any claim. I also believe the entire thought process is contagious and the VSO's who work in the regional offices are also effected. Look at the file, get a copy of its entirety, and go into damage control mode, call a good SSA attorney and ask them who they use for disability claims for IME's and make an appointment to see them. It may cost you 4 to 500 dollars but it will be the best money you have ever spent. If you need direct help, feel free to shoot me an email. John

Veteran- who is "they" (They being the Insurance Company) "Thery are starting to give me some grief about Social Security and have contacted ALLSUP INC to track My SSD claim. " I would think that this is not "earned income" ( It is disability insurance) "Anyhow, in reading the Policy for the LTD, It states a Total Disability from any government agancy will Kick in the long term clause of the policy" That seems to me to indicate the policy is continued with any gov award of total disability----??? ( The policy says it offsets with SSD but not with VA Compensation)Not sure though- I am concerned about your VA claim- Have you formally applied for TDIU yet? Total Disability due to unemployability? (Yes IU claim is pending ajudication process now)Do you get SSA for any or all of the claimed SC disabilities? (Not yet for SSD. I am not overly concerned about SSD for it offsets LTD) Anyhow I am at the ALJ stage. Particularly the ones that VA awarded already? Is the LTD policy from the feds- like for any employment from VA, PO etc? ( Private Company) Is the LTD policy based on any on the job disability and is it for partial disability? ( Combination of all disabilities) I am glad you have a lawyer-hope the lawyer calls you back soon- TDIU- on the last decision for 70% rating what did the VA say as to TDIU? ( We are still working on the claim for Iu)Did they consider it as inferred issue and then denied it? Or did they not consider TDIU issue at all? They just didnt look at it the first time around, Now they are. If they denied what reason did they give? I just want them to add the total disability up and make a determination before I go to see the Judge as to the extent of total Disabilities and SSD. If I fail to Get SSD then the Disability company will stop payment unless the VA steps in with their information.

Rdawg, It is your right to go and see the Record anytime you feel it is necessary. The SO cannot disallow you from seeing it. I would have ripped him a new one if he tried that crap with me. Call them up and tell they you would like an appt to check the entire claims folder and supporting information in the VA's posession. Then go and see it. Your Xrays are probally at NRPC. Good luck.

It is not new for Florida. It is nation wide. I also had a DRO review and like John I was happy with the result. I actually won. I think it is the best way to go as it takes a year or less to have a review done. An appeal can take up to 2 years or more and if you do both the DRO and appeal, It can take 3 or more years.

I h ave a rather unusual situation. I have a Long term Disability policy that has been paying my former salary before I retired. Thery are starting to give me some grief about Social Security and have contacted ALLSUP INC to track My SSD claim. I passed the information to my attorney but have heard no r3esponse as of now. Anyway, I am 70%SC 30 Migraine HA/ 30 Hypertensiver heart disease/ 20 DJD/DDD 20 / incomplete paralysis ( Radiculpathy) 10 HTN. I have pending claims of Paralysis Phrenic nerve with Restrictive lung disease attributed to the DDD of the neck/ Obstructive Sleep Apnea / PTSD. The Lung is rateable at 60 / OSA is 50 / Ptsd should be 50 if not 70. That should make the combined rating over 100 percent schedular with a combo of SC and NSC items. Anyhow, in reading the Policy for the LTD, It states a Total Disability from any government agancy will Kick in the long term clause of the policy. Will the VA give ma a combo rating for the insurance purpose with all disabilities? I said it was complex.