Cue Reconsideration

[john999]

Is is possible to ask the VARO to reconsider a denial on a CUE claim. I understand that a CUE is treated as a new claim not a reopened claim. Would it be better to just NOD the denial of the CUE and go to the BVA? Do you have to have new evidence to ask for a reconsideration of a CUE? My CUE was at the RO level. It was denied. I want to know what to do next.

[Pete53]

John:

I would guess that you could ask for a reconsideration. Did you have a Hearing?

Pete

[john999]

No Hearing yet, Pete. I am tryin to keep this thing local as long as I can becasue once it gets to the BVA I think it gets more complicated.

[Vike17]

You can only ask for a reconsideration if you submit "new" evidence that wasn't before the decision maker at the time they made their previous decision. So, with a CUE claim this isn't possible because, as you know, a CUE must be based on the evidence before the decision maker at the time they made the decision and the law and any regulations in force at that time.

The only thing that might be a possibility would be to submit (make VA aware of) any laws's or regulation citations that were in affect at the time of the decision in question that VA might have missed. Does this make sense?

Vike 17

[john999]

Vike

What I did was to point out that the VA could not use a report that was not in the record at the time of the CUE to deny the claim. The VA used a 1989 medical report to deny my 1973 CUE claim. They used the 1989 VA medical opinion to reinterpret what both my doctor and their doctor said in 1973. If I cannot introduce evidence that was not in the record in 1973 then how can the VA use such evidence to deny my claim. I think I will just wait until the VA makes a decision on my reconsideration request and then file an

NOD. I wonder if using evidence that was not in the record to deny a CUE is another CUE?

[Vike17]

John,

If you say the VA used a 1989 document to somehow influence a determination on a alledged CUE from 1973 is actually what transpired, they can't. File an NOD.

We went through this before awhile back. Something doesn't sound right with this whole thing. There's probably more to this.

"I wonder if using evidence that was not in the record to deny a CUE is another CUE?"

I don't know, never encounter this type of situation. If you file a timely NOD, it doesn't really matter one way or the other because if the CUE is granted on appeal, the effective date stays the same.

Vike 17

[Former Member]

I asked them to reconsider a CUE denial some months ago and they started working on my CUE again-with rater now-

I pointed out that they denied due to one critical statement-

(This is a CUE on SMC accrued- supported by a General Counsel Pres op, and VA regs and M21-1 itself)-

They tried to say the veteran had never filed a Section 1151 himself. If that were true there would be no basis for my CUE.

When I quickly pointed out that the veteran had filed this claim 6 months prior to death-

a claim I re-opened after his death-

I also stated that the former RO director had sent me a copy of my c file and it was right in there.It was at Rating board the AM he died.

I sure know what you are saying Vike-

but I think if the VA commits error in a CUE denial -it should be pointed out right away and I felt asking them to reconsider was the best way.

The re-opened 1151 was awarded to me-

100% direct SC PTSD

100% Sec 1151 heart and 100% Sec 1151 stroke equals SMC. OP PRes Op,38 CFR ,M21-1 etc

My rep at the time questioned that they never "paid him for the Sec 1151 disabilties" in a posthumous award I got-but did not suggest filing a NOD- and years later when I got smarter I see now that only a CUE can rectify this.

My other CUE- the denial made no sense so I asked them to clarify.

The veterans medical evidence ,supported by VACO Gen COunsel med report, from 1988 to 1994 showed undiagnosed and untreated heart disease as one of multiple malpractices.

The VARO never rated the heart disease.

They act like he had no heart disease-they stated they had already considered this issue.

I had to sue them to prove he did have heart disease and believe they dod not read the medical evidence from VACO which they had at time this CUE occurred.

I have not heard on their clarification. This is a CUE due to legal error in providing no diagnostic code or rating for the veteran's significant heart disease.

Proven my FTCA claim and Sec 1151 award.

Again you make a GOOD point- reconsideration or not, a timely NOD has to be filed on any CUE denial.

SInce I am at Rating board- I still have time to file the NOD-

but not much time--as a recon request does not stop the NOD clock.

Actually it appears to me that someone at the RO is certainly reading my SMC CUE claim well-

and without the Sec 1151 that Rod did file-

they were right- there would have been no CUE.

Edited May 9, 2007 by Berta (see edit history)

[john999]

Berta

I also felt the error in my CUE denial was so obvious and gross that anyone who looked at it again would see it at once. Why do I have to wait a year or two to get someone to recognize the complete flouting of the VA's own regulations regarding CUE's? Either the rater did not have a basic understanding of CUE or just wanted to discourage me from pursuing it. They could have just done a boilerplate denial and left it up to me to procede, but my RO could not resist giving me a kick in the privates for questioning this decision. They also used the CUE denial to question the basic fact of my 37 year old service connection decision. I am not going to let that stand without a fight. It is like the VA decides "Mary had a little lamb" and you have to wait two years to get a hearing on this. This is what drives people nuts.

[Jay Johnson]

As bad as it sounds, I've heard this type of thing before. When asking for more, the VA sometimes not only denies the request for an increase, but questions your current level of disability as a way of saying, "shut up or we'll make things worse".

All I can say is that you should try to reconsider, but if you do so be sure to be very precise in your words and cite only legal precedent (IE - the rater said XXX, but the reg clearly shows that it's YYY).