What Is Cue "on Its Face"?

[Angela]

I keep reading these BVA decisions on CUE, and they keep repeating the rules for CUE.

They say "To reasonably raise CUE, there must be some degree of specificity as to what the alleged error is and UNLESS IT IS CUE ON ITS FACE, persuasive reasons must be given as to why the result would have been manifestly different but for the error."

But I can't find a single decision that says what CUE ON ITS FACE actually is.

Does anyone else know??

[Guest Berta]

Obvious error.

I have had 2 vets who-for some reason- got the date of their C & P exam as date of their EED retro payment.

In each case I prepared NODs that stated that they did not incur their service connected disability during a C & P exam, as their med recs indicated.

These are not CUES-

But say- the vets accepted those dates and never appealed them- a year goes by---and then they find out they should have appealed-

This would be valid and obvious basis for a CUE claim.

'On it's face 'it is an obvious and undebatable error.

Or say- my kid never filed a NOD on her Chap 35 denial-

over a year goes by and then it hits her that the award letter was all wrong.

She files a CUE and immediatley the VA sees that her 7 years mil service extended her eligibility for Chap 35-

an obvious error-basis on its face for CUE-

(She did file NOD and three weeks later got the proper award letter.)

Another example -the VA sent me an offset overpayment some time back. VA District Counsel had CUed a past VA decision that I had appealed but then never pursued.(LIKE A DOPE)

I actually seemed to think their denial made sense at the time.They were wrong.

I figured out their figures and the award seemed to be short $11,000. Meantime my DIC check had been odd amount for months-

I sent them a letter on the offset statement and the DIC .

Within a few weeks I got the $11,000 and also the DIC that they owed me.

If a year had gone by after the District counsel cued them-and I never had appealed -it would take a CUE from me to get the amount changed.

On it's face- it would be a clear and undebatable and obvious CUE-

Because it failed to fulfill prior CUE of district counsel.

Does that help?

[Angela]

Does VA's failure to consider most recent (and most complete) examination of record meet the 'ON ITS FACE' criteria? I can prove it.

[Pete53]

For most cue is a long shot.

[Guest Berta]

Does VA's failure to consider most recent (and most complete) examination of record meet the 'ON ITS FACE' criteria? I can prove it.

No- that is the kind of evidence that a claimant can appeal a denial with-

I guess I am not successfully explaining CUE-

a CUE goes back in time- to the medical evidence available at time of alleged CUE-and the regs in place at time of CUE.

Those regs would be found within the past denied decision.

It is not a medical error- it isnt really even a medical issue -it is a legal one-

within:

http://www.va.gov/vetapp02/files02/0205680.txt

"FINDINGS OF FACT

1. In December 1960, service connection was granted for the

residuals of a shrapnel wound of the right buttock; a

noncompensable evaluation was assigned, effective the date of

the appellant's claim for service connection.

2. The appellant received written notice of the December

1960 rating decision in January 1961; however, he failed to

file a timely appeal therefrom and that decision is final.

3. The December 1960 rating decision failed to apply

relevant regulatory provisions extant at the time pertaining

to the assignment of a 10 percent rating under Diagnostic

Code 7804 for the appellant's shrapnel wound scar of the

right buttock; the result of that decision would have been

manifestly different but for this error.

The RO's December 1960 decision which denied a

compensable rating for the appellant's residuals of shrapnel

wound of the right buttock is clearly and unmistakably

erroneous; a 10 percent rating was warranted under Diagnostic

Code 7804. 38 U.S.C.A. § 5107, 5109A, 7105 (West 1991 &

Supp. 2001); 38 C.F.R. §§ 3.104, 3.105, 20.1403(a) (2001);

38 C.F.R. Part 4, Diagnostic Code 7804 (1960)."

The medical evidence was- at the time of this CUE- Dec 1960-

undebatable- the veteran had schrapnel wound and scar - which should have been rated under DC 7804.

The veteran , in 2002, date of this BVA decision got 42 years of retro at 10% due to this successful CUE.

I agree with Terry - a good CUE isnt a difficult claim-

it is an obvious case of prior VA error in application of regs -based on undebatable medical evidence in the VA's possession at time of alleged CUE.

I feel this is much like your CUE situation.

If the VA had medical evidence that warranted a higher percentage for your disability (such as above vet did) when they awarded it , and the appeal period has passed-you have a valid CUE claim.

[Jay Johnson]

CUE is mostly about the rule of law...where most people go wrong is attempting CUE based on mistakes by the RO in adjudication rather then clearly broken regulations. Basically, if you can directly establish a link between your claim and a regulation that was violated AND the violation is not open to interpretation, then you have a chance at a valid CUE.....if you feel they didn't give some evidence enough weight and/or merit, you really don't have a shot at a CUE.

A CUE must be very black and white...either the RO clearly broke a regulation or they didn't, if you can't come up with the evidence to support a regulations violation then you really have an uphill battle. With that said, it never hurts to write a CUE up and submit it (if all else fails)...the worst they can do is reject it, which puts you in the same position you would have been had you not filed CUE. The only downside is that you can only open a CUE once for a specific action, so it is best to wait until you have a solid case for CUE before filing (make sure your CUE is as good as you can get it, then you won't have to worry).

Edited November 13, 2005 by Jay Johnson

[Angela]

So are you saying that CUE "on its face" is when they break the law or fail to follow a regulation?