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Another Question About Cue


Rockhound
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Question

To warrant revision of a Board decision on the grounds of

clear and unmistakable error, there must have been an error

in the Board's adjudication of the appeal which, had it not

been made, would have manifestly changed the outcome when it

was made. If it is not absolutely clear that a different

result would have ensued, the error complained of cannot be

clear and unmistakable. 38 C.F.R. § 20.1403©.

I find this portion of CUE very disturbing, the statement seems to broad in its scope to truly understand. To me, it would seem that even if you showed it was absolutely clear that their would have been a different result because of the error. Then you must show how it would have manifestly changed the outcome.

If the outcome only left questions as to the finality of the decision, that is to say that there was enough evidence to support say the veteran's original diagnosis, just as there was not enough evidence to support the VA's decision that a change in the diagnosis was warrented, then what is the Veteran left with, if the evidence that supported the original diagnosis was not sufficient to be rated at 10% or better ,but was at least as likely enough to be SC. Is this sufficient to say it manifestly changed the outcome when he was denied SC and now it showed he should have been SC even at 0%.

It's 2:00 a.m. pst. and I can not sleep even though I am exhausted and desperately need to sleep. But in the mean time, my mind won't let go of this question, since it seems to be the one question that is holding up finalizing my CUE claim.

RR B)

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To warrant revision of a Board decision on the grounds of

clear and unmistakable error, there must have been an error

in the Board's adjudication of the appeal which, had it not

been made, would have manifestly changed the outcome when it

was made. If it is not absolutely clear that a different

result would have ensued, the error complained of cannot be

clear and unmistakable. 38 C.F.R. § 20.1403©.

I find this portion of CUE very disturbing, the statement seems to broad in its scope to truly understand. To me, it would seem that even if you showed it was absolutely clear that their would have been a different result because of the error. Then you must show how it would have manifestly changed the outcome.

If the outcome only left questions as to the finality of the decision, that is to say that there was enough evidence to support say the veteran's original diagnosis, just as there was not enough evidence to support the VA's decision that a change in the diagnosis was warrented, then what is the Veteran left with, if the evidence that supported the original diagnosis was not sufficient to be rated at 10% or better ,but was at least as likely enough to be SC. Is this sufficient to say it manifestly changed the outcome when he was denied SC and now it showed he should have been SC even at 0%.

It's 2:00 a.m. pst. and I can not sleep even though I am exhausted and desperately need to sleep. But in the mean time, my mind won't let go of this question, since it seems to be the one question that is holding up finalizing my CUE claim.

RR B)

Brother,

In quoting the words of a long time (over 30+yrs as a VA rater) "it's nearly impossible for a veteran to win a CUE against the VARO!"

The reason is: perception.

How does the person who's rating this veterans claims read and or understand what it is the vet's claiming, then how he/she reads and understands the CFR?

Even when this person makes a mistake, they're blanketed by a protection policy, that allows the VA to say "well at the point and time in question, the person who rated this vets claim, did the best they could, with what they had to work with!"

No harm, No foul! NO CUE!!

It's that loop hole in the system and the legal wording in a CUE, that allows VA the ability to have "wiggle room!"

A CUE is a justified mistake, but this mistake must be seen, admitted and accepted by a trusty VA employee and unfortunately not by a court or the law.

Whoop

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  • HadIt.com Elder

I believe there was congressional interest in having some way for vets who had been denied compensation for many years on bogus interpretations of law to be able to get justice from the VA. The CUE idea was cooked up to "appear" to solve this problem. In fact, the CUE is so narrow that even the most egregious decisions at the VA don't amount to a CUE. Even outrageous acts such as totally ignoring evidence may not be considered CUE. In most sorts of legal proceedings this is clearly a serious error. In the VA system who knows? I read a claim where the Vet was psychotic and on SSD and only got 50% from the VA. To actually read the CUE claim you would wonder why it took pages of discussion to reach the conclusion that the Vet had been denied TDIU wrongly since the VA knew about the SSD award and knew the vet was completely crazy and had not worked in 30 years. Yet and still, the Vet seems to have won their CUE by a hair.

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CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

CUES CAN BE AND ARE WON !

jmho,

carlie

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The following is an excerp from a BVA claim that somewhat mirrors my own in that my claims through out the years are so inextricably intertwined that it is nearly imposible to determine, that one must be decided before the other can also be dicided.

In addition, a review of the record suggests that the veteran appears to be raising a claim of clear and unmistakable error in the administration of his original claim (December 1984).

This claim appear to be inextricably intertwined with his current claim to reopen. According to Harris v. Derwinski, 1 Vet.App. 180 (1991), any issue which is inextricably intertwined with an issue on appeal must be determined before the issue on appeal can be decided.

Under the circumstances of this case, the undersigned concludes that additional assistance is necessary, and this case will be REMANDED to the RO for the following:

1. The RO should afford the veteran a comprehensive psychiatric examination by an appropriate VA specialist. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychologicalstudies with applicable subscales, must be conducted. The specialist should correlate the findings and render an opinion as to whether any current disorder, upon a more complete and

contemporaneous review of the veteran's medical history, may be etiologically related to his condition, diagnosed as schizophreniform disorder, in service.

The claims file must be made available to and reviewed by the examiner prior to the requested study.

2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and complete in full. If any

development is incomplete, including if the requested examination has not been performed or does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented.

3. The RO must also make a determination as to whether clear and unmistakable error may be found in the adjudication of the veteran's original claim for service connection.

In the event that the veteran's claim remains denied, in whole or in part, he and his

representative should be provided with an appropriate supplemental statement of the case, and an opportunity to respond, and the case should be returned to the Board for further appellate consideration if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need not do anything, unless otherwise contacted.

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