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Need To Know How To File A Cue


Guest Morgan

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Does a CUE require a VA form, or just a written explanation?

Carrie

Carrie, there are no forms to fill out to start the CUE process. You should submit a written explanation requesting for the CUE but let me suggest that you request the help of Berta. She is very knowledgable with VA procedures, especially CUE write ups! Hope this helps. :D

Swan

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Does a CUE require a VA form, or just a written explanation?

Carrie

Carrie- just state in a letter to the VARO :

This is a claim under provisions of 38 U.S.C.S. 5109A.

I believe the VARO (Or the BVA) made a clear and unmistakable error in the decision dated _____ which I have never appealed. (enclose copy of the decision narrative etc, if you have it all)

The VA violated ___________ state specific regs in 38 CFR by______________________(how they did it- wrong Diagnostic code, or wrong whatever-like misapplied Chapter 35 regs that state so and so-)

The error, had it not been made by VA, would have manifestly altered the outcome, as I was denied proper retoactive payment due to this error, of the wrong diagnostic code (for example) and I should have been coded and rated at a higher level, based on the medical information the VA had at that time and the proper application of rating provisions within 38 CFR. (which is always good to send them too-the actual regs)

1. final unappealed decision,2. reference to the specific reg or regs they broke,3. how this error affected you adversely-

I say they should be stated within a few paragraphs.

The specific regs they broke MUST be stated or they will not address the CUE-

All of the regs regarding adjudication are here at hadit and on the net- under 38 CFR-

It seems to me if one goes over these regs carefully they are bound to find the exact reg that the VA broke-

Remember a violation of a duty to assist regulation and a medical argument of differentiating medical opinions are not a CUE basis.

Yet those errors in VA decisions can be manipulated sometimes into a CUE challenge by finding the right regulation that shows what they should have done but didnt.

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Thanks, everyone!

Berta, this is wonderful! Saves me time in trying to word it myself. I will do as you suggested a couple of weeks ago and cite the VA's failure to use the rating schedule appropriately. Do you think I should also mention VA's failure to assign the "higher of two evaluations"? I don't remember if that is a reg or if that comes from the M21-1 APM.

I know CUEs are hard to win, but if they accept the difference between the "chronic" vs "beginning" argument it's plain as the nose on their face. This condition had been ongoing for 25 years, it couldn't possibly be considered as having any sort of "beginning" sign or symptom when it involves every-day circulation of lower extremities. Could mean about $16,000 if we win.

In this same decision the examiner mentioned his varicose veins, too, but the VA didn't bring that up in the decision. Do you think that's because the symptoms are virtually the same as post-phlebitic syndrome, so pyramiding was being avoided? The decision quoted the examiner's mention of palpable varicose veins.

Thank you for your help.

Carrie

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