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This Weeks Cue Claim Update, Dec. 10, 2005


Guest Jim S.

Question

I made my weekly call to the local VARO and got, what at first was disturbing news on my claim, the way the phone person was relaying the current statis of my CUE Claim, I thought that they had made the same mistake and were looking at it as a new claim for new and material evidence. I called my DAV SO right away to get their view as to what was going on and they were able to alay my fears and explain things so that I could understand what was happening.

The Claim is a new claim, but is looked at in light of Clear and Unmistakable Error and not for new and material evidence. It was explained to me that the CUE claim is a new claim submission but until the developtment of the CUE issue is sorted, it appears on the screen as just a new claim and seeing this, the phone person can not tell the difference, without going through the file to decern the difference and usually don't go into more detail on the claim than what comes up on the front page of their screen.

It is different with the SO, they are privey to the memo that they send with the claim and to any developtment, from what I can tell, even before the phone person has the info on their screens. I guess that is why the SO seems to know the award before the VARO tells us. Not to say mine is anywhere near being awarded, as far as I know, it is still being developted, and probably will be for another couple of months or so.

What it boils down to, nothing new and no end in sight yet.

Jim S. :)

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It's Alive! It's Alive! My Claim is Alive! LoL B)

Called this afternoon, Jan. 12, 2005 and got the oddest reply yet from the VARO phone person, He'll call me back later today and let me know exactly what is going on with my claim. Sooooo, I called my SO and asked if they had anything new to report.

I filed my claim, or at least the claim they recognized back in Sept. 2005 and my SO tells me it is at the raters initial review and that is usually were they request an C & P examination from. So I should keep my eyes open for a letter requesting my body to present itself for a C&P exam or not, I'll just have to wait and see what is going to happen.

At least their is movement on the harizon, that is better than nothing and no movement at all, like in the past.

Will keep you posted as the Claim progresses.

Jim S. B)

B) :D B) :D :lol: :D :lol:

p.s. Why would they want to give me a C&P exam for a CUE claim? B)

Edited by Jim S.
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Terry-the way I understand it-

if the VA Regional Office made the CUE- yu file the CUE claim with them-

if BVA made it- then you file it with the BVA-

I will try to check that- though-

my CUES are with the RO_ I have never been to the BVA-

I used these CUES which VARO has failed to address so far as my response to a recent denial of retroactive SMC due the veteran in his posthumous 100% award.

It was one of the best responses I have prepared yet-I do better with vets claims than my own -emotional issues cloud my thinking- I have to remain focused.

I clearly stated the three prongs of CUE and how I satisfied each of them and then added VA case law itself regarding SMC under 1151 and also a nice OGC opinion in support.

Also since the veteran was 100% SC and about 300% 1151, I told them the SMC "S" is obviously unacceptable and that two years posthumous retro with two dependents under SMC R-1 would be acceptable.

Stated it all like they were ten years old.And cited the exact regs they broke and the erroneous final decision.

Also I stated this was under SEC 1151 and the Nehmer SMC will be separate issue.

I already figured out the math but will hold that until they resolve this-

Berta

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The problem I see with taking a CUE claim to the BVA instead of the RO, as in Berta's and my CUE, they have their beginning and end at the VARO level. If you bypass the RO and take it to the BVA and win, you are still looking at a possible remand for proper adjudication at the Agency of original jurisdiction. Of course What Terry stated bears looking into but each person must ultimately decide which path to choose.

After the strange call yesterday, in which the VARO phone person asked if I had been set up with an exam, being Friday, I half expect to get a letter in the mail today for just that. The VARO having the habit of sending out their mail so that the Veteran receives it late on Friday or Saturday, so the Veteran cannot make any inquiries until the following Monday. We'll just have to wait and see. LoL

Jim S. B)

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