I got it reopened based on CUE, that was the CUE talk. I posted my question and filed my reopen claim on eBenefits with a statement pointing out the CUE on two counts. First was that they denied my secondary Raynauds in the same letter that they granted my Primary Systemic Lupus (SLE). They had denied the SLE on July 10, 2015 and then gave me a C&P for Raynauds as direct SC on July 17, 2015. The examiner did not consider the secondary illness aspect because the SLE was denied on July 10. So when they reconsidered the SLE claim and granted it 2 months later they just included the denied Raynauds direct SC claim in that letter without going back and asking the examiner to consider whether the Raynauds was secondary to the SLE. I had 3 expert DBQs on file saying it was secondary, and their examiner did fill out the form on the status of my condition, so it was CUE not to review the claim for secondary once they determined that the primary was service connected. The failure to review that evidence at all was the CUE and it was outcome determinative since several experts were unopposed on the fact that it was secondary. Some things really are CUE.
The second CUE was denying my depression secondary to lupus claim because I missed the C&P, because they had 2 expert opinions in front of them already that my depression was caused by SLE. One of those was from a social security administration examiner. So they had no opposing opinion on the secondary nature of it and knew that the SSA considered it completely disabling. It was CUE not to grant the claim, even with a zero percent rating. There's a reg. that says they are not allowed to deny a claim solely for a missed C&P but must examine the evidence if it exists. They did have that evidence. So that was CUE because it dictated a favorable outcome. Even if a C&P found no secondary connection, that would be outweighed by the two expert opinions finding otherwise. So that claim was reopened.
The other two conditions secondary to SLE I did not claim but were inferred by the VA and then analyzed on a direct basis even though I had told them that they were secondary. So those claims were denied alongside my original SLE denial in July 2015. The question is whether if they infer conditions as secondary to SLE and deny them along with the primary condition, but reconsider and grant the primary a month or two later, are they not also required then to REINFER the secondary conditions and consider that secondary condition evidence that they ignored before? Probably that also is CUE only because they inferred the conditions in the first place so should have inferred their reconsideration. But regardless I gave them a BVA opinion stating that the grant of the primary is itself NEME - new and material evidence - to reopen the secondary claims.
So I will have to wait and see what effective date they give me for my SMC-S benefit, but I do believe that the foregoing errors rise to the level of CUE and will be sufficient to get me an effective date of September 2015 when the original SLE claim was granted.
That is true I'm sure that CUE is hard to win. I was already final in my decisions because I did not appeal (I had filed a NOD but cancelled because I was too sick and homeless and could not follow through with it). So I had no appeal pending. I quoted the reg relevant to the rule on missed C&Ps. I did not quote the one you cite above but that one is the right one applicable to examining all the evidence, and that fits the Raynaud's CUE. And also maybe the other conditions secondary I claimed, because the SLE DBQs stated outright that those conditions were secondary to my SLE, so that should have led them to reexamine those conditions.
When I made this original post I had just put up my new reopen claim on eBenefits and wanted some insights from you all on whether they would reopen. They did, for all 4 conditions. So that is great. I will post how that turns out here. I think I will get that earlier effective date and if I don't I will appeal through the RAMPS process rather than CUE, but the grounds will be the same CUE arguments above. I was a practicing attorney before I got too sick to work, and wading through regulatory stuff was my specialty. I wish I was not so sick and could help other people with their claims too, but I am only well enough even to work on my own stuff intermittently. I really appreciate yours and Berta's insights.
I am no expert on VA laws, but so far I think what works for me is what always worked for me as a lawyer and that is to understand the issues and convey them to the VARO in a way that is easily digested by the reader. For original claims, the key is simply to trump their evidence with your own. If you have to keep submitting different expert opinions, eventually the scales will tip in your favor. If you have to appeal, and the grounds are solid, DESPITE WHAT VA LAWYERS ADVISE, submit that request for reconsideration explaining exactly what the error is in one or two pages only. It has to be a clear error for them to really "fix" their decision, but it doesn't have to be officially "CUE." They don't want their track records messed up either. So an obvious error does prompt them to respond, in my experience. That can be just a request for a DRO review attached to a NOD, but it is quicker to just request it without the NOD, in a letter. On the other hand, I know Berta has been jerked around even with her CUE claims, and CUE is clear and UNMISTAKABLE error. The difference is this, for CUE you must have an obvious error that is OUTCOME DETERMINATIVE. The result in your favor must be obvious and undeniable based on the evidence they had at the time. Also CUE requires a final decision first, so you cannot be in the appeal system at the time. You have to be out of the 1 year period for submitting new evidence also. But for other "obvious errors" you can succeed in getting your claim reopened at any time and even with an appeal pending, if you can characterize the obvious error succinctly so that they can read your letter and understand their error based on just that. I am very lucky that this has worked for me, I know. Thanks for your time!