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Sent In Cue Claim

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Guest fla_viking

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Guest fla_viking

Dear Fellow Veterans & Friends

I finnely sent in my CUE claim for retro pay for 16 years. Only once in 26 years have I had the VA rule on the merits of my claim. All other rulings by the VA and Court has been challenges to my right to be there in the first place. OR they destroyed the evidence so I could not get a fair review. Latter on the VA always used the argument. I need new and material eveidence to re open my claim. I think on CUE they cant use any of the normal challenges they use to keep from having to reveiw the merits of my claim. Either I have a CUE or not and that will have to be the issue they rule on.

I know in the past the VA had absolute proof I was service connected by the documents before them but denied me the right to have them review them because of there procedure of demanding new and material eveidence. The VA for 22 years denied me acess to a C&P because they knew what the medical examinations conclusions would be if I ever got before a Dr with those documents.

This is going to be the same situation. My CUE claim is based upon the BVA finding that the VA did not obtain VA MMPI reports which showed 22 years latter that I was service connected all along. BVA cases and legal opnions state the VA must obtain records and if they dont and the records change the out come that is a CUE. IT will be interesting to see if they use procedural BS to deny ruling on the merits of my CUE claim or ignore my arguments all together. Ive seen allot of cases that were solid just to have the VA go off into alice and wonderland theroys to explain away its denials.

I will publish the BVA ruling when it gets in.

Terry Higgins

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Great Terry-

You never know -as you said- how VA will view a CUE- but your claim satisfied -in my mind- the three distinct "prongs" a CUE claim must hold-

and the fact that you were SCed as chronic and presumptive-in my mind- is the key-

VA knew while you were in service that you had schizophrenia-by way of the medical evidence-in order to find you presumptive-whenever they finally did- 16 years later-

I read over my two CUE claims yesterday-

double checking for those three prongs:

1.Final decisions

2.clearly erroneous application of regs and law at time of alleged CUE- 1997-

(sent them the regs and SOCs -also OG opinion to prove-)

3.Manifestly different outcome-retroactive SMC possibly at M level-2 years under accrued benefits, under Sec 1151 and 6 years under Nehmer when my main claim succeeds.

A CUE never changes a diagnosis - it is the diagnostic codes that fall within 38 CFR-

that can be CUED-as well as other legal errors in application of law.

When a VA adjudicator states a diagnostic code-this is a legal act they are performing-not medical-

they are applying VA regs to come up with the DC.

Say for example a veteran files claim in 1997 and a 1999 award letter award states 30% for DC code 7010 -superventricular arrhythmias-1999-

The vet also gets a few 10%ers-the SO says- be happy and go away-

Yet the veteran's med recs show he/she had acute episode of congestive heart failure in 1997,after filing the claim-and the med records of this were sent to the VARO-to include heart ECHO showing Ejection fraction of 40% -left ventricular dysfunction-

This condition ,beyond the DC 7010 criteria,falls under DC 7007 as hypertensive heart disease -and this vet should have been rated ,back to the acute cardiac episode -at 60%.

Terry's claim is different than this but this is one example of CUE-

Since the vet did not appeal the 1999 decision his/her only avenue of approach is the CUE claim-

and it could certainly succeed.

It is unfortunate but we claimants have to check everything single thing on these VA decisions-

Edited by Berta
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Guest VetWife Advocate
Dear Fellow Veterans & Friends

I finnely sent in my CUE claim for retro pay for 16 years. Only once in 26 years have I had the VA rule on the merits of my claim. All other rulings by the VA and Court has been challenges to my right to be there in the first place. OR they destroyed the evidence so I could not get a fair review. Latter on the VA always used the argument. I need new and material eveidence to re open my claim. I think on CUE they cant use any of the normal challenges they use to keep from having to reveiw the merits of my claim. Either I have a CUE or not and that will have to be the issue they rule on.

I know in the past the VA had absolute proof I was service connected by the documents before them but denied me the right to have them review them because of there procedure of demanding new and material eveidence. The VA for 22 years denied me acess to a C&P because they knew what the medical examinations conclusions would be if I ever got before a Dr with those documents.

This is going to be the same situation. My CUE claim is based upon the BVA finding that the VA did not obtain VA MMPI reports which showed 22 years latter that I was service connected all along. BVA cases and legal opnions state the VA must obtain records and if they dont and the records change the out come that is a CUE. IT will be interesting to see if they use procedural BS to deny ruling on the merits of my CUE claim or ignore my arguments all together. Ive seen allot of cases that were solid just to have the VA go off into alice and wonderland theroys to explain away its denials.

I will publish the BVA ruling when it gets in.

Terry Higgins

TERRY<

EVEN MY TOES ARE CRAMPED FROM CROSSING THEM FOR YOU. HOW CAN THEY MISS THIS!!!

BRENDA

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Berta and others,

What would a cue claim look like if the VARO mentions the records but does not 'discuss' them?

An example from my case,

The VARO was asked to get my SSA Disability file in 1996.

SSA had sited fibromyalgia and PTSD together as totally disabling in 1993.

(No changes since then)

The RO has mentioned my SSA file but never discussed why the 1993 dates do not apply in the VA claim.

1993 was also the year that I started getting outside opinions.

The RO has mentioned several of them but never explained why the information did not apply.

They mentioned them in 2002.

My win's Effective Date is 03, 2002.

THE COURT has remanded my effective date claim because of the lack of explanations.

sledge

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Tom- as long as you are still in claims appeals process- there is no bases for CUE-

However- you raised a good point-and you are fighting this at court level- which is good-

I was reading a BVA decision the other day- the vet had said they (VAR0)did not make statements referring to each piece of the evidence-

yet-in this case what the BVA referred to was just the highly probative stuff and it was enough for the vet to get a remand-

Basically they dont have to consider all the evidence if they at least consider what is most important to properly deciding the claim-

Like- I have sent the VA internet printouts of medical treatices as well as stuff from VA itself to support my claims.

I also have two IMOs too which support SC. The printouts corroborate evidence in the med recs .

If the claim is awarded solely on the basis of IMOs, I dont care if they never read the print outs.

But one claim I have is a CUE with an OG Precendential opinion to support the fact they committed a CUE.

In that case if they deny this CUE without referenceing the OG Pres Op, I will be screaming.

What does get me though is when a vet gets SSA for the same SC condition and they do not consider the SSA award properly or the date-which is proof of unemployability with an entitlement date.

I certainly see that point of your claim and feel it should succeed-

outside opinions ignored too?

I think that is unconscionable-

an outside opinion comes from a real doc-they should have given these opinions weight!

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Tom- as long as you are still in claims appeals process- there is no bases for CUE-

Where, exactly, does the regulation state that one cannot be in the appeals process when filing a CUE? I have two CUEs in at the moment along with a request for a DRO review (at the advice of a friend of mine on the coach team ...whatever that means). I know CUE calls for a final decision, but a final decision, by VA standards, is simply any decision by the RO that has taken effect (IE - past the 60 day point).

P.S. - I dug up the old post here about finality...here are the regs we discussed in that thread -

§ 3.160 Status of claims.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

§ 3.104 Finality of decisions.

(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part.

§ 3.105 Revision of decisions.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply.

Unless the language behind CUE specifically calls for a "finally adjudicated claim" then I can't see where CUE can only be filed when a claim has exhausted ALL appeals....I'm curious about this because, like I said, I was told by the RO that I could indeed file CUE while appealing and that I could appeal both decisions seperately to the BVA if need be. The way it was explained to me was that they are two seperate issues with two seperate appeals paths <shrug>.

Edited by Jay Johnson
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