Need Some Advice

[rattattat]

I am helping a friend with his claim.

He filed a CUE on a claim denied in 2000. He filed in May with his vet rep. He sent in the specific reasons that this was a cue, and sent in evidence that was in the record at the time that was not used , and pointed out several erroneous statements made by the VA.

He got a letter today, it is the same flippin type of letter he got in 2000. It is asking for new evidence and is stating the same erroneous information that was in the original.

His injury is combat related.

What gives ? This was a CUE on the original. It never went past the RO. I thought that new evidence was not allowed on this type of claim. What should we do now?

[free_spirit_etc]

What did the letter say that they sent him. It sounds like the type of letter they send to re-open a claim. (your claim was denied because of ___. In order to reopen your claim we need new and material evidence about ___).

He can reopen the claim -- and if he gets it awarded - file the CUE for an earlier effective date.

What evidence didn't they use?

Erroneous statements?? The VA??? Surely not!!!!

Free

I am helping a friend with his claim.

He filed a CUE on a claim denied in 2000. He filed in May with his vet rep. He sent in the specific reasons that this was a cue, and sent in evidence that was in the record at the time that was not used , and pointed out several erroneous statements made by the VA.

He got a letter today, it is the same flippin type of letter he got in 2000. It is asking for new evidence and is stating the same erroneous information that was in the original.

His injury is combat related.

What gives ? This was a CUE on the original. It never went past the RO. I thought that new evidence was not allowed on this type of claim. What should we do now?

[Berta]

I agree with Free- to re-open the claim- and comply with the VCAA letter and election notice- did he get one yet?

CUE depends on legal error only.

"I thought that new evidence was not allowed on this type of claim. What should we do"

He can file for reconsideration and send them more evidence- legal evidence-

I was denied on a CUE for an odd reason-

the CUE goes back to a Sec 1151 claim my husband filed 17 years ago which I re-opened upon his death.

I was awarded the Sec 1151 claim-except they never decided one important part of this claim.

Then the VSM said it HAD been part of the Sec 1151 award.(The PTSD component of the original 1151 claim)

So I raised the issue-then where is the direct SC death Award?

If a SC condition contributes to death(and they admitted they killed him by malpractice) the death should be directly service connected.

The VA denied the CUE (on lack of SMC)by raising the issue that my husband never mentioned his PTSD as part of his Sec 1151.

I rebutted in very strong terms- and the proof that he did is right in the c file in his original 1151 claim where he emphatically stated his PTSD was negligently treated by the VA.(supported with medical evidence)so -he added-they probably did not diagnosis heart disease and strokes correctly and might cause his death.

(He was right-he died 6 months later- FTCA and 1151 award 1998-heart disease,HBP, and strokes malpracticed)

But to continue to prosecute the CUE claims-I also sent more legal evidence of their legal error-

I am repeating all this to see if the CUE denial has gotten into a tangential area- in their statements- in your case-

the VA knew that if they could get me to buy what they were selling here- there would be no basis for my CUE claim.

The vet or widow can rebutt anything they throw in- and should-but should send them any evidence whatsoever of their legal error and keep them focused on the legal aspect of the CUE claim.

I sent in all and all probably 10 submissions on my CUEs- all established VA case laws and regs-

all that says the veteran was eligible for SMC and the VA committed clear and unmistakable error.

The actual CUE and another one I have pending are based solely on legal error.

This vet must comply with whatever the VCAA letter told him he needed to get- buddy statements, proof of injury in his SMRs, whatever it could be -he needs to get this evidence-then after an award the CUE might kick in place-hard to say-

I dont know what he possibly could have cued-

CUE has nothing to do with Duty to Assist.It has nothing to do with a medical interpretation of disability.

w3hat was the legal basis of his CUE?

[rattattat]

I agree with Free- to re-open the claim- and comply with the VCAA letter and election notice- did he get one yet?

CUE depends on legal error only.

"I thought that new evidence was not allowed on this type of claim. What should we do"

He can file for reconsideration and send them more evidence- legal evidence-

I was denied on a CUE for an odd reason-

the CUE goes back to a Sec 1151 claim my husband filed 17 years ago which I re-opened upon his death.

I was awarded the Sec 1151 claim-except they never decided one important part of this claim.

Then the VSM said it HAD been part of the Sec 1151 award.(The PTSD component of the original 1151 claim)

So I raised the issue-then where is the direct SC death Award?

If a SC condition contributes to death(and they admitted they killed him by malpractice) the death should be directly service connected.

The VA denied the CUE (on lack of SMC)by raising the issue that my husband never mentioned his PTSD as part of his Sec 1151.

I rebutted in very strong terms- and the proof that he did is right in the c file in his original 1151 claim where he emphatically stated his PTSD was negligently treated by the VA.(supported with medical evidence)so -he added-they probably did not diagnosis heart disease and strokes correctly and might cause his death.

(He was right-he died 6 months later- FTCA and 1151 award 1998-heart disease,HBP, and strokes malpracticed)

But to continue to prosecute the CUE claims-I also sent more legal evidence of their legal error-

I am repeating all this to see if the CUE denial has gotten into a tangential area- in their statements- in your case-

the VA knew that if they could get me to buy what they were selling here- there would be no basis for my CUE claim.

The vet or widow can rebutt anything they throw in- and should-but should send them any evidence whatsoever of their legal error and keep them focused on the legal aspect of the CUE claim.

I sent in all and all probably 10 submissions on my CUEs- all established VA case laws and regs-

all that says the veteran was eligible for SMC and the VA committed clear and unmistakable error.

The actual CUE and another one I have pending are based solely on legal error.

This vet must comply with whatever the VCAA letter told him he needed to get- buddy statements, proof of injury in his SMRs, whatever it could be -he needs to get this evidence-then after an award the CUE might kick in place-hard to say-

I dont know what he possibly could have cued-

CUE has nothing to do with Duty to Assist.It has nothing to do with a medical interpretation of disability.

w3hat was the legal basis of his CUE?

His CUE was based upon several substantive rules/law that were not applied. Evidence that supported his claim and that was in the records at the time were not used. VA took out of context one medical file statement that was erroneous and ignored the original statement by the VA doctor that supported the claim. The SOC was inadequate.

His injury was combat related, but they did not abide by the rules related to combat injuries. A failure to apply the law. They did not use all pertinent evidence of record.

When he filed the CUE he sent in his reasoning for the CUE, supplied the relevant rules that were not used and how they applied to his case. He sent in the evidence of his combat and how he was injured during combat. He highlighed all of the errors in the evidence used by VA/RO to deny the claim, and he highlighted the evidence that supported the claim that showed the VA took one statement out of context and used it as a reason not to use reasonable doubt. Which, if you saw the file is completely ludicrous.

The medical file clearly states "long term history of pain in spine, but three years ago syptoms increased. He now is expierencing numbness, increased pain, weakness in hands" The VA used the "three years ago" statement as the onset date of symptoms. This same error was mentioned in this new VCAA. It says "In fact, evidence of record shows that your symptomalogy did not start until 1996." They used this same crap to deny again.

I believe they are trying to say his claim is a reconsideration with new evidence, and not a CUE so they can get out of backpay.

He has an IMO in the works now,just waiting for the final report, he has buddy letters, proof of combat, proof of injury, and current diagnosis.

When he filed for CUE he also sent in two BVA decisions that were almost identical to his where the claim was approved. I thought in a CUE you could not use new evidence just what was apart of the record when the claim was first adjuicated.

Should he send in what they are asking for now? What about the backpay to 2000?

Thanks for any advise.

[free_spirit_etc]

This is just a suggestion -- and I am not as experienced with claims as some on the board - so if what they say contradicts what I say -- you might want to listen to them.

But it seems like there are two issues - getting SC and the CUE. It seems like they are treating the CUE as a request to reopen the claim. If they keep treating it like that - then they might just reopen the claim - instead of adjudicating the CUE.

I think I would keep sending what they asked for - for the reopened claim - In this case it would probably be evidence that his condition started prior to 1996. But also re-iterate to them that they have not addressed the CUE. I am not sure how hard to push the CUE. I think I would just mention it - to make sure you have evidence that though they are treating it as a reopened claim - you have NOT dropped the CUE issue.

If they deny the claim the second time - you wouldn't get the CUE anyway - and will have to appeal the issues.

If they grant the claim - and don't back date. Make sure you appeal for an earlier effective date - and point out that they still have not addressed the CUE you filed on ____ and re-adressed on____.

So there are the two issues. Should Service Connection be granted? And did they commit a CUE? The SC is the MOST important...because no matter what mistakes they made it can't be a CUE unless it would have manifestly had changed the outcome of the case (i.e. resulted in SC).

Free

His CUE was based upon several substantive rules/law that were not applied. Evidence that supported his claim and that was in the records at the time were not used. VA took out of context one medical file statement that was erroneous and ignored the original statement by the VA doctor that supported the claim. The SOC was inadequate.

His injury was combat related, but they did not abide by the rules related to combat injuries. A failure to apply the law. They did not use all pertinent evidence of record.

When he filed the CUE he sent in his reasoning for the CUE, supplied the relevant rules that were not used and how they applied to his case. He sent in the evidence of his combat and how he was injured during combat. He highlighed all of the errors in the evidence used by VA/RO to deny the claim, and he highlighted the evidence that supported the claim that showed the VA took one statement out of context and used it as a reason not to use reasonable doubt. Which, if you saw the file is completely ludicrous.

The medical file clearly states "long term history of pain in spine, but three years ago syptoms increased. He now is expierencing numbness, increased pain, weakness in hands" The VA used the "three years ago" statement as the onset date of symptoms. This same error was mentioned in this new VCAA. It says "In fact, evidence of record shows that your symptomalogy did not start until 1996." They used this same crap to deny again.

I believe they are trying to say his claim is a reconsideration with new evidence, and not a CUE so they can get out of backpay.

He has an IMO in the works now,just waiting for the final report, he has buddy letters, proof of combat, proof of injury, and current diagnosis.

When he filed for CUE he also sent in two BVA decisions that were almost identical to his where the claim was approved. I thought in a CUE you could not use new evidence just what was apart of the record when the claim was first adjuicated.

Should he send in what they are asking for now? What about the backpay to 2000?

Thanks for any advise.

[rattattat]

Free,

Thank you for your response and advice.

I will do as you suggested, and make sure the CUE is mentioned again with the evidence.

I have to wait until his IMO is finished in the next coule of weeks so I can send that in with the other stuff.

They seem to get confused if you don't send stuff altogether, and highlight every point , one page at a time.

Thanks again for all the help.