Question On Cue Process

[Done wit this]

Hi everyone,

I have been working on and researching the CUE Claim Process.

Today I called the PVA paralyzed veterans of America, this was the winston salam office in NC where my Orginal claim was denied. I did this because that was the place the CUE was commited on my claim. I thought that might be the place to file the CUE because that VARO would be the RO that gave me that decision.

:( :(

Well I explained to the PVA officer the reason of the deniel and stated that I found the records that the decision was made without- and they should have had when making the decision. He said that without me appealing the original decision within one year that the decision was final and I could not go with an collateral attack - CUE

My understanding of a CUE is 3 things #1 the decision was never appealed

#2 it involves an error to the appl of a fact or law that existed when the cue was made and #3 it would change the outcome of the past claim if sucessfull and its the only way to recover lost retro in the decision that was never applealed.

Now the decision was in 1994 and it was made with the reasons on the denial being No SMR's from time claimed, I found them in 2005 and refiled. tell me if I am wrong or I'm

,I am right, Is the man that I called giving me bad info or am I understanding the CUE thing all Wrong?

Thanks for any help you people can give.

Macool

Edited September 17, 2007 by macool

[Berta]

I found RIN 2900:

http://a257.g.akamaitech.net/7/257/2422/01...06/E6-14746.htm

and

http://hadit.com/forums/lofiversion/index.php/t2952.html

Is this the one you mean for newly found service records?

CUES involving SMRs can be difficult claims-

It could depend on any legal error they made in a past decision by relying on faulty SMRs.

But the CUE cannot be based on an interpretation by the VA of what evidence the SMRs reveal as to how it was weighed.

Then again per this reg any newly discovered SMRs as evidence could re-open a claim.

http://www.va.gov/vetapp05/files1/0506740.txt

This above case was before the RIN 2900 regs came out- and the discovered SMRs were "new and material" for re-open.

The PVA said "He said that without me appealing the original decision within one year that the decision was final and I could not go with an collateral attack - CUE" That is the whole point of CUE -what a dope he was-

Macool Mike Lehmen in Elmira (NYSDVA) told me he was familiar with CUE claims.

I dont know but he impressed me when I met him recently as to actually knowing some VA case law-

I wonder if he could give you some direction.

CUE claims are involved.

It took me many many days to prepare the 2004 CUE claims I filed in 2004.

I had to state the CUEs clearly as to what regs they broke and then supply the legal evidence to support.

I used M21-1 regs for the decisions I cued and the actual established VA regs at time of the CUES,

4 BVA decisions that showed proper application of the regs they used erroneously, a letter from CHAMPVA supporting the CUE and a OGC pres Op.

I recently had to re-send all this to the VARO and I found an additional reg and attached it to support the CUEs.

Each CUE claim is so unique that it takes some long hard work sometimes to fit the CUE into the regs.

I researched countless CAVC and BVA decision to prepare these 2 CUES - this is what I did in 1998 with a CUE that the BVA denied.

The RC awarded it in 2004-I should have appealed to the CAVC.

It involved a final decision,one paragraph of the legal error,and one single piece of evidence but even the BVA failed to understand it.

Regional Counsel did.

CUES do take lots of work sometimes.

Edited September 18, 2007 by Berta

[Jay Johnson]

A CUE is just an argument of law on ANY decision made by the RO. One does not need to exhaust all appeals on a claim to file CUE; there simply needs to have been a "final" decision, which is the initial decision by the RO (appealed or otherwise).

The trick to CUE is that it ONLY deals with the regulations and most people want to argue over medical evidence. In order to file a CUE you will need to cite specific regs, how they were not followed and how following them now would result in an increase in benefits.

It's a very simple process that many folks blow out of proportion in my opinion, but it's also terribly difficult to win because you are very limited in what you can argue.

BTW, this is an area where I think lawyers will be a HUGE help because the law is their area of expertise....if you can find one that understands CUE use him/her imho.

P.S. - I know people will argue with what I've written, but I've spoken directly to an RO director on this issue and people here cannot seem to distinguish between a "final decision" (which a CUE calls for) and a "finally adjudicated decision" (which a CUE does NOT call for)....these are both defined in the regs and quite clear.....final only means ANY decision by an RO; you can CUE while you're still in the appeals process!

[Done wit this]

Good advice, Thanks Hadit

Thanks for the links - Berta I will study the regs you sent,and try to get ahold of the gentlemen in Elmira. Then I will go see him and see if he could help. Not much hope in that after talkin with the man from Winston Salem NC, he was useless - worse then that.

I Have not been contacted by anyone as of yet about my Claim - Last time I checked I called the rep in Buffalo and he checked on the claim and said they were still working it. any one got a time frame for a decision - ? did not think So.

Macool

Edited September 18, 2007 by macool

[Jay Johnson]

Last time I checked I called the rep in Buffalo and he checked on the claim and said they were still working it. any one got a time frame for a decision - ? did not think So.

Macool

It's the VA, so figure somewhere between 2 months and 5 years (ball-park figure of course:-)

[Berta]

Rick- NYSDVA hired and trained a new rep for the Bath office too-

I would hate to see you go all the way to Elmira for nothing- maybe best to feel out Mike as to your CUE claim first---by a phone call-

Then again he was the only rep they have who knew right away my VCAA letter was illegal.

The most important part of CUE -in my opinion-is defining the laws they broke.

It could be as simple as the improper diagnostic code (DC) which caused the disability to be rated too low- or even a lack of DC causing no rating to a known disability that later is basis for service connection.

This is one of my favorites-

http://hadit.com/forums/lofiversion/index.php/t6058.html

(Myler)

Here is another beauty:

http://hadit.com/forums/lofiversion/index.php/t9216.html

Under the search feature at top of the hadit main page if you put clear and unmistakable error into the search for hadit a lot will pop up.

Some CUEs are prime facie-

like the fact that my husband's heart disease was prevalent in VA records but never rated or given any DC at all.

His heart disease was never diagnosed until 1997 -by VACO due to my FTCA claim and VA stated the negligence in not diagnosing or treating it for 6 years hastened his death and I was awarded Sec 1151 DIC on that basis which also included "multiple" other malpractices I proved to the OG.

The fact remains however that VA had medical evidence of 6 years of his malpracticed heart disease and failed to rate it at all in 2 subsequent decisions I received.My DIC was based on the VACO report that confirmed my charges of malpractice to include the heart disease-so they were fully aware of this ratable disability.That is legal error.

That legal error also hinges on my SMC CUE claim.

The veterans 1151 disabilities were well over 100% and with 100% SC direct for PTSD the SMC should have been awarded.

Also medical evidence for my 2003 AO claim proves that these ALL were due to direct SC DMII under Nehmer AO regs-too.A big p[roblem for VA and NVLSP said they never saw anything like this before.

My long point here is the VA does make legal errors in claims and they do cost the vet or widow retro-

unless they are discovered and questioned by a CUE claim-

as long as the decision they are in is a final one.

The VA can cue itself and they do-

I asked them to CUE themselves on a 2005 decision and they did-this resulted in an immediate conference between my rep Gerry up at Buffalo and the DRO in 2005.

The NOD and the appeals process is the best way to get VA to correct legal errors- prior to any decision becoming final-not as CUE claims but as part of the rebuttal to their negative decision.

But it can take years to even realise a CUE was committed.

My POA said there was something wrong with my 1151 award in 1998 as to SMC consideration but never advised me to NOD it.I forgot about what he said but after studying SMC for vets claims then years later I knew what he meant.

Edited September 19, 2007 by Berta

[Done wit this]

I,m working on a CUE

I just wanted to post this now that I need this Info ** I am working on my CUE ,And everythings, Right here at Hadit.com to prove this -- Links -- all one could need to help them through their war with the VA system

Hadit.com is one hell of a tool for all veterans to have. Thanks All - you are all are very special people and deserve to be told that more often!!

Macool