Elementary Question On Cue

[vaf]

Can I file the CUE to the BVA? Am I obligated to file it at the RO first? Can I file to both at the same time?

Thanks.

[Guest Jim S.]

My school of thought and I think their are others, is that the Office of Original Jurisdiction, the Office that made the error that the CUE is based on, has the first bite at the apple.

I think the other school of thought is, that if the VARO is the Office of Original Jurisdiction, then you can Appeal to the BVA on the Basis that the decision by the VARO was based on CUE.

I think their is another and it doesn't matter who made the decision, that in order to CUE a claim, that claim must be a final decision. but this only seems to cover reopening of a claim. you have two ways to reeopen an otherwise closed, final decision and that being with new and material evidence and for reason of CUE.

It is better to study the Law, CFR and M21-1 concerning CUE to better understand it and to read cases at the BVA based on CUE and COVA basd on CUE.

Jim S. :P

[Guest Jim S.]

Vicki: Sorry forgot to answer you second question, NO you can not submit the same CUE claim at both the VARO and the BVA at the same time. You cannot after their is a final decision on CUE bring up the Same CUE claim under the same premise. CUE is a last case senarial and their are other ways to work a claim before it gets that far.

Jim S. :P

[vaf]

Well, the VARO is where I believe the errors occurred. I guess I'll send the CUE's to them.

The basis of the CUE's (in fact, I've got two of them, separate issues), is the fact that on the first one, the VARO denied a 2004 claim that my husband's bilateral carpal tunnel was service connected. While going back over my husband's initial C & P exams of January 1994, I found 1) evidence that he had complained of what turns out to be CTS symptoms in both hands, and 2) he was granted service connection at 0% for numbness, dysesthesia and parenthesia in his right hand (without the term "carpal tunnel" actually being used). He's also a long-term steroid patient due to meds needed for a service connected condition, and it's been documented that long term steroid use can make one more susceptible to developing CTS.

The second one is for an earlier effective date for tinnitus. He had evidence of tinnitus (again, without actually using the term "tinnitus") in his initial C & P exam, but his claim for hearing loss/defective hearing was denied. We later submitted his hearing test scores taken from his service medical records from 1968 to 1992 in a follow-up claim for tinnitus in 1998, and they clearly indicated a hearing problem. He was granted service connection at 10% effective July 1998. The CUE is based on the fact that the VA said in its first rating decision in 1994 that my husband's service medical records were reviewed and considered, yet the evidence they viewed as "new" evidence should have been reviewed from his service medical records the first time around. The evidence was the same in both cases.

I'm hoping I'm understanding this correctly.

[Guest Jim S.]

Vicki: What I am hearing about the CTS is a bit iffy for CUE. He was SC for his symptoms, they must have given a diagnostic code under which they rated it SC. It may not be a CUE, since they could probably argue that it was a matter in which they weighed the evidence. But you might argue a new claim, showing that the symptoms more closely reflect CTS than what they have you rated for now.

The second for an EED for tinnitus, it appears you may have a good CUE since they used the same information to grant Tinnitus, that was in the records earlier in 1994, but should have. this is not a question as to how they weighed the evidence, this is that they failed to apply it.

Anyway, that is how I see it, someone else may see it differently.

Jim S. :P

[vaf]

I'm reading over the 1994 rating decision again. They didn't give me the four-digit code, they just stated the following:

"38 CFR 4.124a provides specific evaluations for peripheral nerve impairment on the basis of a scale ranging from incomplete, moderate paralysis to complete paralysis. The evidence shows a diagnosis of dysesthesia in the right thumb, index and middle fingers which is rated as paralysis of lower radicular. The evidence does not show symptomatology to mild incomplete paralysis to warrant a compensable evaluation."

Lower radicular under 4.124a looks like it would be 8512?

In his initial C & P, there's also the statement, "Veteran reports a very slight tingling paresthesia involving the left hand." His left hand was never rated.

He ended up having surgery on his right hand and arm, and is diagnosed with CTS in his left hand, which has not yet been operated on. That's when we filed a claim for service connection and were denied. We filed on the basis of his being a steroid patient (for a service connected condition) and the relationship between steroids and CTS (Dr. Bash, my husband's internal medicine doctor, as well as his surgeon backed him up). We appealed, and are now waiting. I just happened to see his 1994 rating decision and realized he had been granted service connection for his right hand.

I'm trying to make this right for him.

[vaf]

See, that's my point. Wouldn't the BVA send the CUE back to the VARO for review and adjustment, if required, since the error occurred at the VARO level? I thought that was protocol, but then I read here where some folks send their CUE's directly to the Board. That's what confused me. Is it optional?