Cue Claim?

[sbrewer]

Hi,

If you were diagnosed with a sc condition, then 25 yrs later a knew pychiatrist says you were diagnoed

wrong to start with, is that a CUE claim? If so should you try to get this changed from 25 yrs ago?

Thanks,

sbrewer

[frosty69]

To anyone that might know

I was just wondering if there is some special wording for a CUE Claim, or do you start the appeal out my saying that you are filing a CUE claim for ????? and then stating the reasons why, you feel the VARO, didn’t adjudicate the claim right. I know some get tired of these same old questions, but it is hard to get things straight in my mind, and where I live, there are no decent VSO, as they all seem to think, once you are at a 100% P&T, that you shouldn’t tie up the VA system anymore, with claims, personally I totally disagree with them, as I have been in arguments with them on many occasions. I feel that if a Veteran feels he has an honest claim, he should get all, that he feels is legally his, by VA law.

[Jay Johnson]

To anyone that might know

I was just wondering if there is some special wording for a CUE Claim, or do you start the appeal out my saying that you are filing a CUE claim for ????? and then stating the reasons why, you feel the VARO, didn’t adjudicate the claim right. I know some get tired of these same old questions, but it is hard to get things straight in my mind, and where I live, there are no decent VSO, as they all seem to think, once you are at a 100% P&T, that you shouldn’t tie up the VA system anymore, with claims, personally I totally disagree with them, as I have been in arguments with them on many occasions. I feel that if a Veteran feels he has an honest claim, he should get all, that he feels is legally his, by VA law.

It's not so much in how you word it as it is about what you're arguing in the first place. Your CUE, basically, has to say that the RO/BVA/COVA broke XXX regulation...then you need to cite said regulation and show how, exactly, they broke ti and how, if changed, it would affect your claim. Medical opinions, personal opinions, etc have no place in a CUE...it is simply a matter of what rule was broken and how it was broken.

Here is the format I used on one of my recent CUEs...basically you need to show which reg was broken, how it was broken AND how it would result in a favorable decision if they agree with you:

To whom it may concern,

I am filing a CUE on the basis that there was misapplication and misrepresentation of the regulations in regards to reducing my SMC (A&A) to housebound, in the rating’s decision dated June 11, 2005. The basis for this CUE are as follows:

1) The reasons given for reduction of A&A (dated 06/11/2005…attached) were “You are not in need of aid and attendance of another person to protect yourself from hazards or dangers incident in daily environment. The allegation that your husband must watch over you to keep you from self-harm is not a hazard that is incidental to daily living environment. Clearly your choice to remain in bed and spend much of your day sleeping is not the result of service connected physical or mental impairment”. The above reasons are not “new and material evidence” and do not meet the requirements for a ratings reduction. The RO cannot summarily dismiss another region’s decision as per 3.104 and 3.105 (difference of opinion).

The Prior rating’s decision (from Philadelphia RO dated April 26, 2004…attached) made it clear that A&A was warranted based on “being incapable of being alone at home, as you may be a danger to yourself and/or others.” This decision may only be reviewed at a higher adjudicative body (3.104, 3.105) or by CUE.

2) The rater, in this case, went against the precedent set forth by the BVA (BVA9401373, docket no. 91-46 743….see attached). In this decision the BVA made it quite clear that A&A is warranted in situations where a veteran is a severe threat to him or herself based on suicidal/homicidal ideation and allowed for care to be provided by the spouse. The rater must apply precedent to this case and does not have the authority to lower a rating based on his or her own interpretation of the regulation. The rater had this precedent at the time of the decision, as it was sent to the RO previously.

3) All of the evidence of record shows a continued (and increased) need for A&A based on the criteria set forth in the Philadelphia decision dated April 26, 2004. The letter dated April 7, 2005 from Dr. XXX clearly shows a continued need for A&A based on suicidal ideation (attached). The RO also has all of the documents from a recent hospital stay at SW Washington Medical Center (April 21, 2005 – May 2, 2005), in which several suicide attempts were recorded and an admitting GAF of 10(attached) was given (“Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.”). Also, a current GAF of 15 was given by Dr. XXX (“Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).”). There is no evidence of any material improvement in her ability to care for herself and keep herself safe.

It is quite clear that the regulations 3.104 and 3.105 were violated in this decision and that precedent was not followed. It is also clear that the rater used opinion rather then medical facts in coming to his or her decision. All of this evidence was presented to the RO and no reasonable mind could argue that this decision was erroneous and should be overturned. Also, this change will result in increased benefits for the veteran (from housebound to A&A) and, therefore, falls under the guidelines of “clear and unmistakable error”.

Thank You,

Names omitted.

[john999]

Jay

I think it would be obvious to any person who understands what a GAF of 15 means would understand that that person needs A&A. That is really an outrage to deny A&A. Many people with GAF's of 15 are probably institutionalized or living on the street as homeless.

[frosty69]

Jay Johnson

I guess I got the idea of a CUE ALL wrong then, I thought it would be CUE, if a person got denied for a claim, by the VARO, by the VA not using all medical records, or denying without taking all medical records into account. So then the VA can lie about a persons medical history, and the veteran has no recourse, as a appeal, don't do a bit good, as you will keep on getting denied, because you do not have new and material evidence according to the VA, as a veteran cannot make the VA read the medical history, they seem to want to pick and choose what they look at. the reason I was asking about a CUE, was I got turned down for a injury to by back, my hearing problems and a injury to my little finger, in a claim back to 1971. I thought I would have 3 cue claims, as the back and hearing problems, the VA turned down without using all the evidence, that I just found a couple of years ago, and my finger injury was denied in 1971, because it wasn't in my medical records from Vietnam, but I asked the RO, to help me find the name of my CO, and he could verify the incident, as I got my finger sewn up at a Korean base, in Phang Rang, but they refused my stating that was my job to find out the information, not theirs, back then it was impossible, but in 2003, thanks to the internet I found out my CO name, wrote him a letter, asked him he remember the incident, he did, he wrote a letter, I sent it to the VA, they approve my claim for %, from 2003, but didn't take into account the scar, nor the pain, so I appeal for a higher rating on account of scar and pain and a EED, but they turned me down, so was going to try and CUE IT, but, according to the way I understand your interpretations, I can't, or am I misunderstanding what you are saying. I don't think is a regulation about the VA being lasy and lying.

It's not so much in how you word it as it is about what you're arguing in the first place. Your CUE, basically, has to say that the RO/BVA/COVA broke XXX regulation...then you need to cite said regulation and show how, exactly, they broke ti and how, if changed, it would affect your claim. Medical opinions, personal opinions, etc have no place in a CUE...it is simply a matter of what rule was broken and how it was broken.

Edited March 19, 2006 by frosty69

[Jay Johnson]

Jay Johnson

I guess I got the idea of a CUE ALL wrong then, I thought it would be CUE, if a person got denied for a claim, by the VARO, by the VA not using all medical records, or denying without taking all medical records into account. So then the VA can lie about a persons medical history, and the veteran has no recourse, as a appeal, don't do a bit good, as you will keep on getting denied, because you do not have new and material evidence according to the VA, as a veteran cannot make the VA read the medical history, they seem to want to pick and choose what they look at. the reason I was asking about a CUE, was I got turned down for a injury to by back, my hearing problems and a injury to my little finger, in a claim back to 1971. I thought I would have 3 cue claims, as the back and hearing problems, the VA turned down without using all the evidence, that I just found a couple of years ago, and my finger injury was denied in 1971, because it wasn't in my medical records from Vietnam, but I asked the RO, to help me find the name of my CO, and he could verify the incident, as I got my finger sewn up at a Korean base, in Phang Rang, but they refused my stating that was my job to find out the information, not theirs, back then it was impossible, but in 2003, thanks to the internet I found out my CO name, wrote him a letter, asked him he remember the incident, he did, he wrote a letter, I sent it to the VA, they approve my claim for %, from 2003, but didn't take into account the scar, nor the pain, so I appeal for a higher rating on account of scar and pain and a EED, but they turned me down, so was going to try and CUE IT, but, according to the way I understand your interpretations, I can't, or am I misunderstanding what you are saying. I don't think is a regulation about the VA being lasy and lying.

You may have an outside chance if you could prove that ALL of the evidence of record shows you deserved X%, but even that is incredibly weak in my opinion. I believe it says in some court decisions that you cannot CUE the benefit of the doubt rule so ALL of the evidence must conclude that you deserve X%, without any room for interpretation. You can reopen the claim if you get new evidence that suggests that things have gotten worse...it may be in your best interest to seek out a civilian doctor that is willing to say that your condition has gotten progressively worse and will continue to do so. This should constitute new and material evidence. Also, you can use your own statements such as, you use to be able to do activity XXX, but no longer can due to increasing severity.....stuff like that may reopen your case.

It sounds like you got royally screwed by the VA, but I'm guessing you have no hard proof of it (IE - a paper where they say YOU must prove your SC or other such wording)...they insinuate a lot of improper stuff, but are smart enough not to write it down and you can't CUE something based on what you say they said:-(

[Guest Jim S.]

Let me see if I can put some teeth into a possible claim for reconsideration or to reopen with new and material evidence.

Take a copy of your C-File with you to see a private Dr. point out to him the evidencce that the VA failed to consider in your claim and ask for him to examine you and If he concures that the two are related, have them srite an IMO to that fact. They then can attest to their own findings and show how the two are related,

It is better that they give reason and basis for their statement, expertice in the field, time and any papers or medical treatese on the subject.

You could also find the check list for the associated problem and take it to have the Dr to follow in the exam. Once you have his IMO in hand you can use it to support your claim for consideration stating why you felf they failed to consider this evidence and your Dr's IMO is proof of it's importance in the decision.

Or you can use it to appeal the prior decision if your time is not up or reopen with new and material evidence.

Once and If they find in your favor, and they don't give you and EED, then you have some proof that they should have considered the previous evidence and if they had followed up on it, they would have awarded back then.

It's a lot easier to back your say so with supporting evidence that independently support the evidence you say they didn't consider and then going after a EED than it is to prove a claim of CUE. Reading COVA CUe claims will show you that they are rarely approved outright and are more likely to be remanded instead, at the time it takes to get to the COVA, you couod probably have present three or four complete new claims with new and material evidence.

Your choice. I have a CUE claim in the wings now, depending on a claim for reconsideration. It involves a changed diagnosis, only the Dr did not change it, the VA rater did, their by violating rule of law, basing a medical opinion, without medical evidence to support his conclusion that a diagnosis was changed. I have had discussions with a lot of members here and even they had their doubts as to whether I can prevail with a claim of CUE, more I think, because it is so hard to prove, if it goes all the way to the courts.

good luck,

Jim S. B)