Justaskpat

NO need to apologize JustAskPat- I apologise to you because I am pressed for time this spring, summer-and I do not want to keep repeating what I have already posted here in the CUE forum- for over 2 decades- even on the original hadit board.
The VBM you purchased will certainly have a lot of info you will need, on all types of VA clams.
You are very smart and did very well for your husband.
I wish others here would attempt to read the posts and see if they find a CUE in the older decision.
I didn't and could be wrong.
Buck I think you asked your question here before.
If I ever find my answer to it,I will post it for you.
 
 

Did you file an appeal on the 2011 decision?  My CUE was denied many years later because I did not file an appeal back in 1973.

ON July 23, 2019 I wrote a potential CUE claim for you here-in the older thread-
It rested solely on violation of 38 CFR 4.6. Did you add anything to it and send it to the VA?
This is the main problem I see -
Your husband had ample inservice medical records of a depressive or anxiety disorder.
But the 2011 C & P exam did not support a chronic condition and the veteran said the main problem had been resolved.
But something caused them to award in 2019- something they received as new evidence prompted that award.
Can you tell us what evidence that was?
If they had that evidence when they made  the past 2011 denial, that could be a valid CUE.
As I mentioned in the older thread and will again-CUE is like the Watergate question:
"What did the President know and when did he know it"
Same as VA- what did the VA know ,(by virtue of all available records) and when did they know it?
They knew something in 2019 that they didn't know in 2011- or Did they?
Did the VA ,in 2011, have whatever evidence  you sent to them for the 2018 claim, that awarded that claim ?
That would be a CUE if they had it and ignored it.
 
 
 

Thank you.
The decision is from 2011, so has to be a CUE.

It takes a lot of time to read the past thread and downloads-
There were multiple DBQs received by the VA in January 2019, also Evidence received from Jordan Young Institute regarding July 2018 to December 2018.
Also an additional Doctor's statement and what appears to be a Buddy statement.
I cannot determine what evidence they used for the claims they listed.
Obviously some of the probative evidence is dated after the 2011 denied claim.so they had it but not at time of the alleged CUE decision.
CUE rests on what they knew and had evidence of ,at time of the decision being cued.
It seemed to me also that his discharge certificate did not mention the depression/anxiety that is noted in his SMRs.
 
 
 
 
 

I agree its highly probable for a CUE.
If a CUE  is found and evidence was present in 2011 (not considered or located).
To rate the issue from 2011 thru 2019, wouldn't the injury or sickness have to manifest to a ratable %.
Otherwise, would it be service connected in 2011 with 0% rating.

Forgot to add -it is # 25 of 26 issues  in the March 23, 2011 denial in above link.

Rather than file a CUE you might just file an appeal and get more evidence.  Evidence can come in the form of another IMO/IME.  At some point the quantity of evidence will weigh in your favor.   CUE's are really hard and may get kicked upstairs for never ending series of appeals and denials.  My CUE I filed some time ago took seven years to finally be denied.

Is this regarding your past posts here:
https://community.hadit.com/topic/75117-could-my-cp-examiner-be-disqualified/
The VA granted 50% for Major Depressive Disorder ,in 2019, with an EED of December 2018.
If you are questioning the EED, it would have to follow the CUE criteria here at hadit....unless newly discovered service records revealed evidence the VA did not consider, when they initially denied the claim.( 38 CFR 3.156C)
I read over the denial dated March 23  2011 in your past posts here and it appeared to me that the denial was based on the C & P examiner's statements-and the veteran's statements  which to me- did not provide a decision you could file CUE on-for a better EED.
The C & P exam is available as a download in the older thread.
I am sure there is more to this however- and we need to know what decision you are attempting to CUE.
 
 
 
 
 

Can you cut and paste the part in the rating decision to which you are referring?  Better would be the entire VA rating decision 'masking' your spouse's ID data.  We'll be better able to assist by reading the same thing you're reading.  This will also assist in comparing the rating to the rating table.

I just did a CUE last week, so I well understand a part of your frustration.

I recall reading of this probably at the CAVC.  No, raters can not practice medicine, they can not make diagnosis, nor suggest treatments.  
They can not provide a "negative" NEXUS, either.  They must use "competent medical opinions".  
Many years ago, "the Board" had at least one doc on its decision committee, so that medical decisions could be made based on the records. 
That has been discontinued decades ago.  Now, doctors and medical professionals must render an opinion.
Raters or the Board can "give more weight" to one exam vs a different examiner, but must provide a reasons and bases for doing so. 
Example:
    While doctor Jones opined the Vets condition was related to service, his PCP, who had treated the doctor for 19 years, opined it was not related to service.  Since the Veterans PCP made a more thorough exam over 19 years of treament, the board finds the PCP's opinion more probative and SC is denied.  
     The board has to craft the denial carefully, and avoid "equipose".  If 2 docs disagree (often happens), then the board has to "put it in equipose" and award benefits based on BOD.  But, the board can cite things like doc A performed xrays, while doc b did not.  That can make one doc's opinion more probative.  
      The solution to "beat" a negative exam is by getting a favorable IMO or other medical opinion.  
       If the board fails to give a reasons and bases for favoring Doc A over Doc B, then this is pretty much an "automatic" remand at the CAVC, and this always gives Vets a chance to submit a favorable IMO (new evidence).  

This may have potential. Were you able to find a radiologist report or is that just part of the regular follow up STR? Back then they had paper copies of STRs. Be sure to check the front and back of every page. I found mine all over the place, like the docs sometimes got creative and wrote on the first page they found.

This is so very true, they would write everywhere on the STR. How I wish I was in when the military used computers to enter in our medical information. It is so challeneging to read the chicken scratch the doctors wrote.

Vync said:
"Some have written elsewhere that if you have to describe a CUE then you don't have a CUE. However, I don't believe that"  Good! That is a ridiculous statement.
I have filed many personal CUEs and am quite happy to tell them exactly what regulation)s) they broke and why.
My whole file is being reviewed for an audit that I requested. I cannot imagine what they will think at some of the stuff I have had to put up with over the years with my RO.
One CUE took 8 years, to even be set for BVA transfer. The even tried to make up a regulation that does not exist.
During those 8 years I felt from time to time that maybe I was wrong about that specific CUE.
Then Nehmer 2010 happened and I asked the Phila VARO, handling my AO IHD claim, to consider two CUEs by then that were still pending at my RO.The awarded the main CUE as SMC and then awarded the IHD claim but they forgot the 1151 IHD claim, part of another CUE I filed- but still it goes to show how VA can try to manipulate us with rhetoric, even telling me a "specialist was reviewing the SMC CUE" but they had no specialist .....
and it was actually a prime facie CUE- meaning so Obvious that I should have never doubted myself.
The rating sheet I used was all I needed as well as the SMC mandate.
My husband was 100% P & T for PTSD and then 100% for 1151 stroke.
Obviously he was eligible for SMC.The Nehmer VA said he was eligible under Housebound as well as 100 plus 60,
but it appears that ( they only pay for one of those theories) they might have paid for only 6 months of SMC instead of 2 years,so I cued them again, on both of above situations. That is part of my audit review request.
If the audit is properly resolved I told the VA that I could drop those CUEs and that just leaves my accrued claim for AO HBP. (under 1151 and direct SC under Nehmer )
 

I feel you have made a very strong argument-I think you should change the 38FCR references to 38 CFR 4.114-
VA loves little errors like that- that are so easy to make. They will know what you mean as to the VA SRD, but they have no common sense at all. 
I suggest referring directly to and enclosing the decision that contains CUE....as to the first page of the decision and then to the page you did add as evidence.Maybe you did that- will read again---
The C & P examiner- have you googled them to see what qualifications they have regarding their statements as to not a chronic condition etc?
They obviously did not refer well to your SMRs, but did indicate  they had them.....
I helped a vet once who had POAs and then a law firm, for his CAVC case, and NONE of them ever looked at his SMRs.
The VA did, however, but saw no nexus to his claim.
I did- and it took considerable time to do- (which the veteran could have done as well) and found enough in his SMRs, to get his non doctor to write an excellent IMO.At no charge to him. He finally succeeded with that claim and  I commend you for being willing to do all of that leg work-because this is how claims can get a far better and accurate EED.
I also wrote to the VA , as a volunteer advocate  who helped him with the claim, that fact that his attorneys did not help him, and I pointed out what they failed to do, and at that time (maybe even now) there was a 5 point criteria for payment of attorney fees.This was a fee issue for the attorneys and it was basically a NOD for him to sign, as well as me.
I never heard back from him , after he got his award letter so I believe the VA did not pay the attorney fee.
If veterans are not willing to do the type of legwork you have done, they will never succeed in getting what they want. I realise how difficult that can be for disabled veterans, but they should certainly be aware of what is in their SMRs, because VA so often just skims through the stack, violating 38 CFR 4.6 more they we know.
 
 
 
 
 

I didn't meet the criteria for 60%:
That criteria is a two-parter, meaning you can qualify if you meet the criteria of either part:
 
Either this:
Yes, I get periodic pain and vomiting, but nothing else. 
 
Or this:
It doesn't keep me out of work more than just a couple of random days per year. The lady in the BVA appeal was out of work for weeks at a time

No worries at all. I saw your approach and just wanted you to be aware of why they probably combined the two conditions. Because they are separate conditions (despite what the VA thinks), it still is a good idea to attack them separately to ensure both get SC eventually and prevent any confusion.

Good luck!
Give it a couple of weeks and you should see it appear on va.gov with an estimated completion time.

UPLOADED REVISED CUE.

Congrats on your 100% !!

Congrats, Postman. Keep on truckin'. If you have more disabilities that you feel should be s-c, go right after them. We are here if you need us. Heck, we all need us.

Checked my disabilities and also checked my letter and they are both updated so let's pretend it's fact for now.
Went from 10% panic disorder up to 50%
 
August 27th: Filed for increase
September 16: C&P exam with LHI
October 4: Preparation for Decision
October 6: Preparation for Approval
October 7: Awarded  increase to 50% for panic disorder

Just got this in the mail today where the VA called CUE on themselves 4 times in one decision as well as adjusting rating for a sympathetic claim.  They originally granted me 10% on each knee for arthritis ... I didn't know anything about being able to file for scars.  They went back on their own and retroactively granted the scars for a year before which increased the rating I had at that time from 80% to 90%.

Tbird has an excellent article here ,right at the top of the CUE forum, and there are other articles on CUE here as well-
but unfortunately many here with CUE questions never read the info here first.
CUE , per the BVA is a Collateral Attack on a VA decision. ROs do not want to be legally attacked.If your CUE succeeds it reflects on 
legal errors that well paid and well trained raters should Not make.And if you appeal a CUE denial- you better have your ducks in a row.
That  also goes for filing a Motion under CUE for Revision of a BVA decision.
This vet waited a long time to get his 6 CUEs denied months ago at the BVA
"Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).
A claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, one who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).”
The veteran, repped by the American Legion, filed  6 separate CUE claims and they were all denied."
 
"Collateral Attack"- that means exactly what it says - You have to have your ducks in a row and Well Armed with knowledge of what a CUE is and that can only be gained by reading the extensve info here at hadit.
Also we cannot opine about whether you have had a CUE in the past without- in most cases, seeing their (VA's) actual decision being cued.
I learned as much about these "collateral attacks" from reading BVA denials  of CUE  as I have  learned from their awards of CUE.
We can tell when someone here  has not read the info available here for many types of claims AO, DIC, Accrued, Nehmer,  CUE, etc etc.
This info has already taken us time to prepare and post.
We cannot read it for you.
CUEs have grown in numbers- many at the BVA these days, and some of them succeed.Because the veteran or their lawyer or survivor took the time to understand what is and isn't a Valid CUE.
 
 
 
 
 
 

🙂😎