Jump to content

Ask Your VA Claims Questions | Read Current Posts 
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules 

  • tbirds-va-claims-struggle (1).png

  • 01-2024-stay-online-donate-banner.png

     

  • 0

Elementary Question On Cue

Rate this question


vaf

Question

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.

Link to comment
Share on other sites

  • Answers 9
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

Recommended Posts

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

Link to comment
Share on other sites

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

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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

Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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?

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


  • Tell a friend

    Love HadIt.com’s VA Disability Community Vets helping Vets since 1997? Tell a friend!
  • Recent Achievements

    • kidva earned a badge
      First Post
    • kidva earned a badge
      Conversation Starter
    • Lebro earned a badge
      Week One Done
    • spazbototto earned a badge
      Week One Done
    • Paul Gretza earned a badge
      Week One Done
  • Our picks

    • These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.

      Service Connection

      Frost v. Shulkin (2017)
      This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected. 

      Saunders v. Wilkie (2018)
      The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.

      Effective Dates

      Martinez v. McDonough (2023)
      This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.

      Rating Issues

      Continue Reading on HadIt.com
      • 0 replies
    • I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful.  We decided I should submit a few new claims which we did.  He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims.  He said that the VA now has entire military medical record on file and would find the record(s) in their own file.  It seemed odd to me as my service dates back to  1981 and spans 34 years through my retirement in 2015.  It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me.  He didn't want my copies.  Anyone have any information on this.  Much thanks in advance.  
      • 4 replies
    • Caluza Triangle defines what is necessary for service connection
      Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL

      This has to be MEDICALLY Documented in your records:

      Current Diagnosis.   (No diagnosis, no Service Connection.)

      In-Service Event or Aggravation.
      Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
      • 0 replies
    • Do the sct codes help or hurt my disability rating 
    • VA has gotten away with (mis) interpreting their  ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.  

      They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.  

      This is not true, 

      Proof:  

          About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because  when they cant work, they can not keep their home.  I was one of those Veterans who they denied for a bogus reason:  "Its been too long since military service".  This is bogus because its not one of the criteria for service connection, but simply made up by VA.  And, I was a homeless Vet, albeit a short time,  mostly due to the kindness of strangers and friends. 

          Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly.  The VA is broken. 

          A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals.  I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision.  All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did. 

          I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt".   Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day?  Va likes to blame the Veterans, not their system.   
×
×
  • Create New...

Important Information

Guidelines and Terms of Use