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Cue - New C & P Exam Scheduled


Angela

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I've filed a CUE claim and just received notice that a new C & P exam is required. Can anyone tell me why I would need a new exam when any new evidence isn't supposed to be used in a CUE?

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Terry,

What court would I go to for a stay? and who do I ask for the C & P order? The RO? Their 800 number?

I'm concerned because they seem to be treating my CUE claim as a claim to reopen or claim for increased evaluation.

Thanks for your help.

Angela

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Angela: I'm with Terry on this one and concerned that are looking at your claim as something other than a CUE claim. This deffinently deserves a trip to the VARO to discuss your claim with the claims Manager. I ended up waisting a year and a half because my claim for reconsederation was looked at as to re-open with new and material evidence. Even thought I caught it before the would have ruled on it, they went ahead and ruled as having nothing new and material to reopen.

I had withdrawn the claim for reconsideration and had submitted a claim for CUE, but like a dummy I gave them a few months to get to it before I checked on the statis and found out that they actully had thought the CUE claim was additional statement in support of claim and ignored the CUE claim. I had to go down and talk to the claim Manager to get things straightened out and back on track.

The reason I say you will have to go down to the VARO to check things out, the Phone clerk, not having seen many CUE claims if any, doesn't know what your talking about, even though they should. A CUE claim is actully process very much like a new reopened claim but then once it is developted, things begin to change.

I am at a loss why they would need a C&P, It seems like they should rule on the issue of CUE first and if they agree with you, then they should then send you a ruling before having to issue a C&P to evaluate your current disability. So, Yes by all means find out what is in the order for the C&P. By the way, my CUE is still early on and the VARO hasn't asked for a C&P, but like I said, it is early on and they are asking me if I want to continue with the CUE claim or to process the Claim File for reconsideration. Still waiting for my new SO to get settled in at his new post, so we can sit down and consider what would be the best move next.

Let us know what happems, I know I will be waiting on pins and needles to find out.

Jim S. B)

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Guest Namvet6567

My thoughts are they "could" be considering correcting their error and planning a

"staged" award - where they have to evaluate your current condition to see if you are better or worse. It could be "a good thing." On the other hand . . . .

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Flip- I see it like this too-

I posted yesterday under 'What can I attach to a CUE' something to that affect-

If a veteran is successful on a CUE in a past decision involving a rating- in may cases that could impact on their current rating too.

Say a vet at 50% files a CUE that generates 100% as proper rating at time of CUE----

The VA would then have to determine that their present rating (if they appealed that with an NOD as well as filing the CUE) should be higher-

does that make sense?

Say you are denied SMC in a past unappealed decision rendered in 2000.

Say you successfully prove that VA committed clear and unmistakeable errors in not assessing you for or granting you SMC in 2000.

Say in 2002 you also had re-opened the SMC claim and then were denied again and filed a NOD.

Would the VA not have to give you a C & P to support that the SMC you were eligible for in 2000(based on the successful CUE) would also have to be considered from 2000- to the 2002 re-open- and then to your current disability?

Maybe that doesn't make sense. If a vet in this case is granted SMC under CUE back to 2000-it is more than likely their condition would still warrant the SMC- but the newer C & P covers their rear ends for the continuous award. ???? any thoughts?

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Question: Does the presidential Opinion in Moody v. Principi make any since to the question why a C&P exam be required in a CUE claim, where Roberson decision required the following?

In Roberson, the Federal Circuit “held” that VA must consider a CUE claim using the standard applicable to claims to reopen with new and material evidence, that is, “VA is ‘to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on its merits.’”

So if the VARO is required to fully and sympathetically develop the CUE claim, it appears if it is needed, then a C&P may be needed in order to develop the claim. How they would use the evidence/enformation gathered by the C&P has to have some purpose, or why do it. What Flip and Berta have opinioned seemed to give this some weight.

It will be interesting to see what the outcome of this is going to be.

Jim S. B)

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Lets look at Cue from a different standpoint. An employee of the VA who makes a CUE and it is a Definate CUE most likely gets reviewed on an annual basis. The Job performance evauluation probally states something like this: No more than 1 or 2 claims errors per rating period.

So the Employee is going to use every avenue available to get a Cue rejected because it makes them look bad to their superiors.

I believe CUE claims are examined with increased detail. I also believe the personal aspect when a worker makes a mistake and takes it personal. Rather than trying to admit the mistake, They spend allot of time doing the old CYA routine and look for ways to deny cues.

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They are considering my CUE on lack of heart rating claim as:

"we will handle this issue as an attempt to reopen this claim as a CUE for service connected death."

I just got this in a VARO letter yesterday and it seems to reflect the prior post-re Roberson-

to handle as a re-open-

yet my direct SC death claim is a cmpletely separate and well supported issue-

I dont see how they have been doing so much movement on my SMC CUE for about 9 days- yet are not considering this CUE heart claim as contingent to that?

They could award SMC without this decision on the other claim though.

Or it is a big stall tactic.

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Guest Namvet6567

jstacy - sorry but I disagree to your statement: "Lets look at Cue from a different standpoint. An employee of the VA who makes a CUE and it is a Definate CUE most likely gets reviewed on an annual basis. The Job performance evauluation probally states something like this: No more than 1 or 2 claims errors per rating period."

A far as I know, VA employees are evaluated "on quantity of work, not quality," and I believe it is next to impossible to fire a VA employee. I personally believe their instructions are developed by attorneys whose sole purpose it is to deny claims, using vague but "legal" instructions. JMHO

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The performance exaluation may say something like this: Adjudicate a certain quantity of claims with no more than 2 or 3 errors per rating period.

It is not impossible to fire a VA employee. It happens every day. At the VA where my wife works They have terminated 3 or 4 last year and that is just one department.

I am sorry you disagree Namvet.

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Just got off the phone with VA customer service rep and just as I thought, they've identified my claim as a "Claim for Increase". CustSvc says there's nothing I can do to correct it except note on their form (the one asking if I'm going to submit new evidence or not) that I don't have any new evidence and that it should be a CUE claim instead of a Claim for Increase.

Your thoughts...

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I would call back Monday for a second opinion Angela- and I think some of those vet reps just make stuff up-

another thing- the VA PC screen often does not identify a CUE as different for any other claim.

They call my CUE an accrued benefit claim-but it is in fact a CUE claim ,which they recently acknowledged.

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