Cue Question

[dav_marine72]

Hi Everyone,

Hope everyone is well I haven't been on for a while. As much as I have learned over the years about VA law I never can seem to grasp the exact meaning of a cue. I have a buddy who I was in the Corps with and he asked me to take a look at his case. The short story is he was on on active duty 94-98. While on off hours he was accidentally shot in the leg. I was already out by then so I don't know the whole story with his treatment while he was in but he finally filed for service connection in 2007. I guess he missed seps class and didn't know about filing as soon as he got out. Well they service connected him obviously because it happened while he was on active duty. They rated him 0% under scar ratings. It looks like all they did was have a skin exam to rate him the first time around. The bullet actually went through his leg so he has an entry scar and a hole where it came out. He didn't know any better and had no service officer so he let the one year appeal period lapse.

He decided in 2009 to file for an increase and this time they did a neurological exam and nerve conduction studies. Based on the exam and testing he was awarded 30%. After looking at his evidence and documented symptoms it looks like he should have received 50% at least. My question though is about a cue. What are some examples of a possible cue in this scenario? I guess my main question would be does a cue happen if evidence is present and they didn't rate properly? What about incomplete exams? I know that would work for an appeal in the proper time frame but does it apply to a cue? After reviewing his case file it looks like they definitely should have done a neurological work-up the first time around. He says his symptoms didn't change from his initial filing until present. His symptoms include nerve pain, drop foot, lack of endurance in the leg, limping, etc. The drop foot was documented in his initial filing. Any input would be appreciated. Thanks.

[carlie]

Hi Everyone,

He decided in 2009 to file for an increase and this time they did a neurological exam and nerve conduction studies. Based on the exam and testing he was awarded 30%. After looking at his evidence and documented symptoms it looks like he should have received 50% at least. My question though is about a cue. What are some examples of a possible cue in this scenario? I guess my main question would be does a cue happen if evidence is present and they didn't rate properly? What about incomplete exams? I know that would work for an appeal in the proper time frame but does it apply to a cue? After reviewing his case file it looks like they definitely should have done a neurological work-up the first time around. He says his symptoms didn't change from his initial filing until present. His symptoms include nerve pain, drop foot, lack of endurance in the leg, limping, etc. The drop foot was documented in his initial filing. Any input would be appreciated. Thanks.

dav,

Check out the C&UE Forum, lots of info there.

No - an inadequate exam would not be a basis for a C&UE claim.

The decision maker is to promulgate a Rating Decision by the Medical

Evidence of record.

In most cases, just because a C&P examiner does a crummy job

and just because the decision maker makes a poor decision,

neither of these rise to the level of a C&UE.

First you would need to study the exact Rating Decision that you and he

may file a claim of C&UE on.

Study the Evidence and Reasons and BASES sections.

Compare what his medical evidence stated back then to what

the recent grant to 30% states.

If they had the medical evidence back then that warranted a percentage higher

than 0 percent and made a legal error in not applying the Schedule of Ratings

correctly (the schedule that existed at the time the Rating Decision was made)that's where the C&UE would be.

The ONLY EVIDENCE that can be considered in the C&UE error claim

is the evidence of record at the time the C&UE was made.

Chances are if he had a penetrating,through and through injury, he should have

been rated under 1) Scars and 2) Muscle injuries.

You will have to figure out what the difference is of record in the

medical evidence.

Once you figure these things out and can state them very clearly,

then you figure out how, if not for this C&UE the rating decision

would have been manifestively (sp) different, as the veteran would

have been in receipt of XXX,compensation dollars$ at XX percent,

additional benefits, of no Co payments if SC'd at 50 percent,

etc...since that time.

You can also do a BVA Search on his disability and look at the C&UE claims

made concerning those specific disabilities.

Study both - C&UE's that are granted and C&UE's that are denied,

then you will understand more of the what and why's of C&UE.

How VA decides to grant a C&UE claim and the reasons/legal ways, they deny

the claim for C&UE.

Here's your BVA study link.

http://www.index.va.gov/search/va/bva.html

When you get to your first set of BVA Decisions -

(Exclude results that contain these terms:) type in REMAND then search again.

Hope this helps a vet.

jmho,

carlie

[poolguy11550]

Well said Carlie.

I might add that one key to a CUE claim is finding the remedy. This means, what could have the veteran or the VA have done Differently to solve this claim at the start. Nearly all the time it falls back on the veteran for not filing an NOD (notice of disagreement) timely. Since the pain and nerve issues where present the same as now, the ultimate duty rest upon the veteran to notify the VA via a timely filed NOD.

You can claim the exam was bad, however, at the end of the day the veteran and/or the representative have one year to skim the evidence for inconsistencies or mistakes and file an NOD. Without knowing all the details of the claim, this is what I think.

I would however, as your friend to contact a lawyer as CUE claims are the most difficult and highly challenged.

[dav_marine72]

Thanks everyone much clearer now!

[broncovet]

I would add that I recall reading somewhere that, "You only have ONE shot at CUE"...can anyone confirm/deny this? Example:

You file a CUE on a 2005 decision, because the 2005 decision failed to address a particular issue. Later you find out there are other CUE errors, that are more probative. Is it true that you cant file a second CUE on a decision?

[Berta]

A CUE claim is not necessarily a one shot deal at all---

There are many BVA decisions that deny CUE claims but allow for the denial to be non prejudicial-meaning the vet can re -characterize the CUE and re-file it.

http://www4.va.gov/vetapp09/files2/0915288.txt

When the VA applies 38 CFR to any claim (not including VCAA or Duty to assist regs)

that is where the legal error can occur -causing a CUE.

Our CUE forum has a wealth of info on this type of claim.