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Sent In Cue Claim


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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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  • HadIt.com Elder

I admire your spirit. Hoping for the best.

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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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I have claims in the DRO review process along with 2 CUE claims-

The 2 CUEs are based on final (unappealed) decisions-separate from the claims in appeals.

Here is the Title 38 CUE regs and also they are found in 38 CFR 5107.

It makes sense that a CUE claim can only be filed in a final decision- because otherwise the appeal process gives the vet a chance to correct it that way-

But you raised a very interesting point-Jay-

VA had failed to award my husband SMC in a 1997 accrued posthumous benefit decision.I had a new vet rep and we never even considered challenging it. I thought at that time that maybe Sec 1151s dont get SMC. I was wrong.

He was 100% SC PTSD, and over 100% disabled due to Sec 1151 for the two years prior to death.

(misdiagnosed heart disease 100 % and cerebral vascular accidents 100% )

I filed in 2003 a simple claim (not a CUE)for this accrued benefit-to see how they would handle it-

Since then (in 2004) the VA stated that he was "Not entitled to Special Monthly Compensation under any circumstance"

I changed it to a CUE in 2004-

The last time they said this was this past September but the whole DRO decision was cued by the VA and they had to start all over again-

Your point is reflected in this claim I have-the 1997 decision was a final one that I CUEd yet the finality of the statement VA made in 2004 (and 2005) was final in it's wording-and I would think any vet could CUE that type of wording in any decision-as , in essense, they are stating in a way that this is something I could not appeal-

Rod was fully eligible for SMC under 1151. I sent them a OG Pres OP to prove it.

And a letter that they sent to CHAMPVA that proved it.

Has anyone ever gotten a statement like that- no SMC comp "under any circumstance"?

I will make them eat those words.

Here's the CUE reg in Title 38:

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.57.49&idno=38

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I have claims in the DRO review process along with 2 CUE claims-

The 2 CUEs are based on final (unappealed) decisions-separate from the claims in appeals.

Here is the Title 38 CUE regs and also they are found in 38 CFR 5107.

It makes sense that a CUE claim can only be filed in a final decision- because otherwise the appeal process gives the vet a chance to correct it that way-

But you raised a very interesting point-Jay-

VA had failed to award my husband SMC in a 1997 accrued posthumous benefit decision.I had a new vet rep and we never even considered challenging it. I thought at that time that maybe Sec 1151s dont get SMC. I was wrong.

He was 100% SC PTSD, and over 100% disabled due to Sec 1151 for the two years prior to death.

(misdiagnosed heart disease 100 % and cerebral vascular accidents 100% )

I filed in 2003 a simple claim (not a CUE)for this accrued benefit-to see how they would handle it-

Since then (in 2004) the VA stated that he was "Not entitled to Special Monthly Compensation under any circumstance"

I changed it to a CUE in 2004-

The last time they said this was this past September but the whole DRO decision was cued by the VA and they had to start all over again-

Your point is reflected in this claim I have-the 1997 decision was a final one that I CUEd yet the finality of the statement VA made in 2004 (and 2005) was final in it's wording-and I would think any vet could CUE that type of wording in any decision-as , in essense, they are stating in a way that this is something I could not appeal-

Rod was fully eligible for SMC under 1151. I sent them a OG Pres OP to prove it.

And a letter that they sent to CHAMPVA that proved it.

Has anyone ever gotten a statement like that- no SMC comp "under any circumstance"?

I will make them eat those words.

Here's the CUE reg in Title 38:

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.57.49&idno=38

The way it was explained to me by my contact in the seattle RO was that a CUE and an appeal are two seperate issues that can be raised seperate of one-another. A cue, as you know, is only an argument over the rule of law; whereas, an appeal is an argument over adjudication. Essentially, you are appealing two seperate issues when you have both a CUE and an appeal in at the same time...one has nothing to do with the other. In my wife's case, I am arguing, in the DRO, the fact that they did not cite new evdience to lower her SMC and ignored the evidence from her recent hospital stay AND a note from her doctor saying that she was still a threat to herself and in need of A&A as a result (her old lvl of SMC). The CUE is about the same thing but from a different perspective......I am CUEing the lowered SMC based on 3.104 & 3.105 (finality and revision of decisions) as the seattle RO did not cite any reason for taking her A&A away other then they disagreed with Philadelphia's decision to give it in the first place (the decision said that a veteran MUST be bedridden in order to get A&A and that she did not qualify because she was not "bedridden"). I also CUE'd the future examination date of 2007 under 3.327, as her condition was deemed permanent AND she was found to be housebound which "requires" a permanent status.

Though the appeal and CUE are on the same topics, they are different in their approach and, as it was explained to me, they will be handled by different departments (CUE goes directly to the "coach" and the appeal goes through normal channels). I will keep everyone here informed of the status of her claim....if it is indeed true that one can CUE AND appeal it would give veterans a two-pronged attack.

Edited by Jay Johnson
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  • HadIt.com Elder

Berta

Your URL was to 38 CFR - NOT Title 38.

Here is the para. in Title 38.

TITLE 38 > PART IV > CHAPTER 51 > SUBCHAPTER I > § 5109A Prev | Next

§ 5109A. Revision of decisions on grounds of clear and unmistakable error

Release date: 2005-10-11

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(:) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

© Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

http://www.law.cornell.edu/uscode/html/usc...09---A000-.html

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Walter- thank you for correcting me!

Jay-

(the decision said that a veteran MUST be bedridden in order to get A&A and that she did not qualify because she was not "bedridden").

I certainly understand your frustration on this claim-

You are absolutely right- I have the A & A regs right in front of me-

"bedridden" would qualify a veteran for A & A-BUT

It is NOT the single factor that the VA is looking for,

This vet gets A & A - he never raised HB issue-

It doesn't say anywhere in this decision that he is 'bedridden' because he isn't.He didn't need to be for A & A.

http://www.va.gov/vetapp05/files3/0514892.txt A & A granted

You are correct regarding the Housebound benefit too-

Jay-like me - I want you to make them "eat those words"too.

Men and women - I wonder how many vets walk away from valid claims when the VA has the audacity to make up regulations that fit into the denial-it can look and sound official-that is the problem-

Let's face it- what we dont know can hurt us and I think they count on us not to access the regs ourselves.

My kid's first claim (Chap 35) as a vet is a good example-

She sent them her DD 214, the award letter for Chap 35, the complete Chap 35 application, the regs in 38 that extend her eligibility by each year of military service,and requested a Certificate of eligibility.

They awarded her Chap 35 for one month (up to her 26th birthday)

and forgot her 7 years military service (which she explained in the app and sent the DD 214 and the regs)

yet-as she said- the VA letter looked official and another similiar veteran might not have appealed a decision like that.

They reversed 3 weeks after they got her NOD- 7 year extention -

My kid is smart but like she said- many smart vets out there would probably not even question a letter or any statement from a federal agency-especially on their first claim for a vet benefit-

because we want to believe that the VA knows what they are doing.

But we have to consider that they might manipulate the regs to their advantage-

In Jay's case- he certainly looked into these regs very well-and they made up something that is not in them-

It is just exasperating to get crap like this from the VA.

(But they probably get away with it enough to keep doing it)

Berta

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