Justaskpat

I certainly is.

exactly why we go through this process. we , meaning YOU, want the reviewer to "get it in one".
No fuss, No muss, No Coconuts.
It is hard fricking work to get it that way when you have never done it.  But you will always know how once you have worked the process and gotten your CUE to a concise, neat, and crystal clear document that no reasonable person can argue with.

standing by to stand by WO... expect a hard hitting on point document... no pressure ⚓🦑⚓🦑⚓🦑⚓🦑⚓🦑

WO,
Read the new draft quickly (between telling my clients employees that NO YOU CAN"T DO THAT for the 1000th time!!!) and frankly I am happy with the improvement.
I cannot do a detailed critique now...it may be later tonight this week.
I will say, if you choose to, this doc for the most part can go just like it is.
That said it is not as strong and clear as it should be.
You started pretty strong (but there are a couple suggestions even here), then around Exhibit 2 or 3 you started to veer off the course in terms of format and direct content.
Get the use and position of the Exhibit 1, Exhibit 2, Exhibit 3 consistent in your style and sentence position. the exhibit should be in the first couple of words of each statement. 
Exhibit 1, page 2 para 3, Line 4 says in part "...blah blah blah..."
in a few places you write 'the examiner stated" or such phrases. NO NO NO NO NO.
Don't include the wording for hiatal hernia as a law in the way you did.
State the Law Name, Code XXXX , contains the conditions analogously represented in Service Treatment Records Exhibit ,1 page 7; Exhibit 2, page 3; Exhibit 4, blah blah blah. Include that law and CODE at the top of your CUE with the other 2 laws.
You cited a BVA case, fine, List it at the top after laws, and cite properly. format as otherwise shown. states in part "...blah blah blah...blah blah....blah blah bla..."
Your Exhibit List needs a title...List of Exhibits works nifty.
In your naming use Exhibit 1(insert em dash(it is the long dash) between the number and title) My first exhibit.
Note I would put in the em dash here to show you but the interface won't let me.
Tighten it up WO, Tighten it up.
NO PERSONAL WORDS. YOU HE THEY nope dont' use them. Don't use "the examiner" nope don't do it.
You have a winning CUE, just don't blow it on format and lax writing style. I see you can write, just tighten it up and you good draft will be an amazing CUE that no reasonable reader could fail to agree with.
 
 
 

The new one looks good, file away.

Can't thank you enough for sending me the link to that BVA case. Although I realize every case is different, it certainly appears I might just have a chance at that highest rating. I am almost finished writing the revision of the CUE. I'll post it by tomorrow, hopefully. thanks again

I  think the MDD CUE is a beauty!
But I think you should just stick to the facts re: 38 CFR 4.6 and the SMRs that they had in 2011 and failed to consider. Others will chime in on the statements as to the way they manipulated the C & P exam.
It appears that they did consider the SMRs for the 50% award-but
the request for a higher rating should be filed separately from the CUE. (some of these raters  can barely read as it is)
You should state at the bottom of the CUE that  their legal error in 2011 manifested an altered outcome to your detriment.
Then again I had a CUE basis in 1996 when I got an outrageous statement in a posthumous C & P exam.
I probably would have gone into details about it in a CUE  -but I didnt file CUE-
I called the examiner and raised hell with him only to learn that the RO had withheld from him, my most probative evidence - my husband's 6 page autopsy- all of that was resolved when I won my FTCA wrongful death claim within a few more months.( my RO also had withheld this autopsy from the OGC when they wanted my files, and even from the top VA cardio doctor, whose opinion, when I faxed them the autopsy fully supported my 1151 and FTCA claim.) 
I guess my point is to keep this CUE short and sweet-(well none of mine have been  sweet) and I do like the way you have rebutted the C & P exam...but their main error is the violation of 38 CFR 4.6.
We have some great members here who understand CUE.
 
 

Unfortunately they have a monopoly and we have no other place to go...our tax dollars at work...lol
The worst part is it doesn’t even affect my percentage...I just want it properly decided. Perhaps I expect to much☹️

should those of us preparing to file a CUE going forward use the 526EZ and avoid this problem?
not a refiling, but on first submission of a CUE.

Thanks for asking this

thanks for answering that is what I thought. Several posters have had different forms rejected and if i remember correctly several had tried to file cue on this one and had it rejected for being "the wrong form".
But there is no "form" for CUE in the doc library as of yet. Maybe someday.
Thanks again.

If it exists, it is probably in your claims file at the VARO, not locally. If your local rep is accredited, he may have access to VBMS. I'm not certain if that includes access to your claims file. Start by requesting a copy of your claims file from the VARO. You can also go and view it in person, but many want you schedule an appointment vs. just showing up unannounced.
CUE requests are pretty strict. You have to show black and white evidence which contains no grey area. Either the TMJ C&P appointment letter is in your file or it is not. If present, the VA will assume the presumption of regularity applies. That means government employees are assumed to have done their job properly (i.e. letter present in your file means it was a copy of what they sent). However, if it is not present in your file, you might have a CUE.
You could also just file a claim to get it SC. You have evidence of the accident and follow up care in your service treatment records. As long as you have a current diagnosis, the C&P doc would probably have no problem granting SC. Once SC, you can file a supplemental claim requesting an earlier EED based on when you initially filed. Given the duration of time since then, you can expect the VA to try to fight it.
I'm not a CUE expert, but am learning. I hope this helps!

I see a potential CUE here- maybe----
If they committed CUE, in their March 29,2011 decision, the retro would go back to the day after your discharge.
But, a few questions:
What was the July 2, 2010 C & P exam for-that they said you missed?
What was the August 13, 2010 C & P exam for , that they say you missed?
I have focused on # 25 in the issues, in the downloads for the March 29,2011
They said consistently that they considered all available medical evidence they had from your SMRs.
On page 3 of 13 on the Award , They listed considerable evidence in order to develop the award.
It states Service Medical Records for the period  ---it doesn't say what period----.
All of that evidence is dated more recently than the denial, such as Patient First-Battlefiled 1-25-13,and numerous other entities.
CUE rests on- as I mentioned here many times over the years, what I deem the Watergate Question....
What did they know and when did they know it?
This is what you need to file : You need to fill in the blank  spots and refer them to the SMRS and enclose copies of them:
Put Attention to: ( put the initials in the alpha numeric on the decision)
This is a Claim of Clear and Unmistakable Errors in(CUE) in your recent ( date of decision) under auspices of 38 USC 5109.
This is a violation of § 4.6 Evaluation of evidence.
"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. "38 CFR 4.6.
You failed to consider probative evidence in my SMRS that warranted my (date)  recent award of service connection for this same disability.
That evidence, in your possession at time of the (dated) denial, is enclosed and listed as Evidence in this claim of CUE.
Your failure to "thoroughly and conscientiously"study probative"elements" in my SMRs caused the erromeous denial in ( date of denial).
That failure had a manifested detrimental outcome to me, that garnered the denial.
I request that this clear and unmistakable error be promptly corrected.
Enclosures                                                                              Respectfully, 
(List each copy of SMR here, as they relate to diagnosis and treatment of your MH Issue ,and total them)
If any of the entities mentions on the Evidence list of the award, stated they had reviewed your SMRs, tell them that as well. And enclose that evidence.
Make sure that your C file #, name and address is on everything you send to them.
I am assuming that the same RO that made the award , also made the past denial-I don't have time to read all the downloads again.Cue has to be filed against the RO who committed the CUE.
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But- I might have to change this depending on your answers to the above questions.
Also we have a TMJ vet here who I prepared a CUE for. TMJ is a known physical response to MH issues.
Perhaps you could re-open that claim as you did with this one and then CUE them on that past denial.
You might have already sent to them, for the award, the inservice treatment records for the anxiety/depression.
If so , unfortunately I suggest sending them again.
I have my own claims issues and realised that my RO  has( from 1995 to 2019, NEVER considered my husband's autopsy. My FTCA/ 1151awards and other claims involving his death were resolved by general and regional Counsel, who read the autopsy.
I have had to file a WH complaint, a complaint with the IG, letters of complaints to two RO directors and today I am contacting the District counsel who covers both ROs.
I mentioned to the IG that this is the 14th time (at least) that I have had to send the autopsy to them  and I had the USPS tracking receipts to prove that. 
As I have said here many times, veterans, if you love your spouse and I assume you do, please make sure they are PC literate ,because the VA can and will victimize them throughout the claims process and the former vet reps I had were useless in handling my claims and told me my most important claim didnt have a chance.
I filed a OGC complaint against them and they are all gone.I also emailed the state reps lawyer when I won.
Everyone here by now who has been at hadit for a few years by now, can start to help others with CUE claims.
It took me about  30-40 minutes to go over the thread, and the downloads carefully, and write the above CUE.
If I am willing to take the time, to do that , so can others here.
Everything you need to know about CUE -is in the CUE forum.
 
 

@Justaskpat, if you redact your decision and place the information here it is confidential ask you are only identified by your screen name.  Many of us have posted our decisions here with no ill results.

Excellent information provided to the OP ..excellent

I am hoping other join in here, but it sounds to me like you might need a lawyer to help you fight this the right way!  I do not have the expertise to help here as you have to fight this the right way and someone here might be able to coach you in how to do it.  

A well know secret is that Doctors who work at the VA are not required to have a state license to practice. I learned this when I asked my PC doctor to write me  prescription to take to my local drug store. He told me he could not since he did not have a license to Practice in Texas  ( he is from Texas) I said ok, so what state do you have a license and he said none, not  a requirement to work for the VA. This may explain why so many va doctors come from India, Pakistan, and other third world or almost third world countries....

I would contact a lawyer about this.  You are looking at eight years of backpay of which 20% goes to the lawyer but you probably would not win this on your own.  The lawyer will tell you upfront if they think if is winnable.  If you are denied take it to another lawyer and see what they say.