Does Anyone Have A Reference Limiting Cue To One Time?

[broncovet]

I read that in filing a CUE a Veteran has only "one shot" to get it right, or forever be barred from filing a Cue again. Does that apply to a single decision? What if that decision has multiple issues, and there were multiple CUE violations? What about "unadjucated" issues, that is, what if a decision failed to address an issue at all, so the Veteran was unaware the decision was "deemed denied"?

I just realized this "deemed denial" thing opened up a can of worms with Cue. In case you are not up to speed a "deemed denial" means if you apply for 3 issues, and the VA issues a decision on just one, the other two are "deemed denied" and the one year appeal clock starts..Veterans are required to file a NOD for claims that have never been decided because the court considerers them denied. Its one of those Va loopholes that frustrates Veterans.

[Philip Rogers]

I believe that "deemed denied" issue only relates to decisions made after the CAVC made that decision. Older claims that haven't been decided should remain open.

pr

I read that in filing a CUE a Veteran has only "one shot" to get it right, or forever be barred from filing a Cue again. Does that apply to a single decision? What if that decision has multiple issues, and there were multiple CUE violations? What about "unadjucated" issues, that is, what if a decision failed to address an issue at all, so the Veteran was unaware the decision was "deemed denied"?

I just realized this "deemed denial" thing opened up a can of worms with Cue. In case you are not up to speed a "deemed denial" means if you apply for 3 issues, and the VA issues a decision on just one, the other two are "deemed denied" and the one year appeal clock starts..Veterans are required to file a NOD for claims that have never been decided because the court considerers them denied. Its one of those Va loopholes that frustrates Veterans.

[carlie]

I read that in filing a CUE a Veteran has only "one shot" to get it right, or forever be barred from filing a Cue again.

bronco,

I do not agree with the above.

Of course the below is a hypothetical example BUT could easily happen.

Let's say that on 02/02/2006, the claimant files a C&UE claim on a Rating Decision dated 01/01/2000 that denied all issues of Hearing Loss and Tinnitus

from a claim for both that was originally filed on 03/03/96.

The claimant states they are claiming C&UE on the issue of Hearing Loss

and Tinnitus due to VA's failure of Duty to Assist

(which in the majority of decisions, does not rise to C&UE criteria)

by providing an inadequate C&P examination.

VBA comes back with a decision and states, claim for C&UE for Hearing Loss

and Tinnitus by the failure of Duty to Assist in providing an inadequate C&P examination is denied.

VA states the Audiology C&P examination evaluated the veterans

issue of Hearing Loss at __HZ, __HZ, __ HZ, and no Hearing Loss was found.

Tinnitus is shown in SMR's as recurrent due to head trauma and continues

to plague the claimant to date.

VA states to grant a claim for Tinnitus there must also be a Hearing Loss

found on examination. No evidence of Hearing Loss so both issues were denied.

No C&UE was found on Rating Decision dated 01/01/2000. Claim of C&UE denied.

Say two years later the claimant submits a claim of C&UE on the same

Rating Decision dated 01/01/2000.

On this NEW claim for C&UE the claimant states VA made an error in applying

the Schedule of Rating Disabilities to the medical evidence of record

in regards to a claim for Tinnitus, recurrent.

The medical evidence of record at the time the 01/01/2000 Rating Decision

was promulgated showed Tinnitus, recurrent as evidenced in Audiology C&P and in SMR's dated XX-XX-XXXX as a result of head trauma.

The 01/01/2000 Rating Decision denied a claim for Tinnitus, recurrent

and stated,

" to grant a claim for Tinnitus there must also be a Hearing Loss

found on examination. No evidence of Hearing Loss so both issues are denied."

The C&UE is that there is no requirement in the Schedule of Rating Disabilities

that requires the claimant to have a Hearing Loss of record

in-order to grant a claim for Tinnitus.

Tinnitus:

6260

Tinnitus, recurrent 10

Note

(1):

A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.

Note (2):

Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.

Note (3):

Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it.

The New claim for C&UE on the issue of Tinnitus,SHOULD be granted,

as: 6260 - Tinnitus, recurrent 10,

with an effective date of 03/03/96, the original filing of the claim.

HERE is a BVA case that substantiates my line of thinking.

http://www4.va.gov/vetapp97/files4/9736749.txt

Citation NR: 9736749

Decision Date: 10/31/97 Archive Date: 11/05/97

DOCKET NO. 96-18 746 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Wichita,

Kansas

THE ISSUE

Entitlement to an earlier effective date for service

connection for post-traumatic stress disorder.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Ralph G. Stiehm, Associate Counsel

INTRODUCTION

The veteran had active service from December 1940 to

September 1945. This case comes before the Board of

Veterans’ Appeals (Board) on appeal from a January 1996

rating decision of the Department of Veterans Affairs (VA)

Regional Office (RO) in Wichita, Kansas.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to an earlier

effective date for service connection for post-traumatic

stress disorder. He specifically has asserted in this

respect that his current 10 percent evaluation for post-

traumatic stress disorder should be made retroactive to June

1950, the date that he first filed a claim for a

neuropsychiatric disorder.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.

§ 7104 (West 1991 & Supp. 1997), has reviewed and considered

all of the evidence and material of record in the veteran's

claims file. Based on its review of the relevant evidence in

this matter, and for the following reasons and bases, it is

the decision of the Board the evidence supports a grant of an

effective date of October 1, 1981, for service connection for

post-traumatic stress disorder.

FINDINGS OF FACT

1. The evidence of record at the time of the August 1982

rating decision, which denied service connection for anxiety

neurosis, clearly established that at least at some point

after service, the veteran manifested an anxiety state to a

compensable degree.

2. A claim for service connection for anxiety neurosis was

filed on May 11, 1982.

CONCLUSION OF LAW

The requirements for an effective date of October 1, 1981,

for service connection for post-traumatic stress disorder

have been met. 38 U.S.C.A. §§ 5110(g), 5112(b)(6) (West

1991); 38 C.F.R. §§ 3.105(a), 3.114(a) (1996).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran seeks an earlier effective date for the grant of

service connection for post-traumatic stress disorder,

contending, in part, that the effective date should be the

date that he first applied for service connection for a

neuropsychiatric disorder in June 1950. Although the RO has

denied the veteran’s most recent claim for an earlier

effective date on the grounds that no new and material

evidence has been presented to reopen this issue, the Board

construes the veteran’s claim more generally to encompass

assertions of legal error in prior rating decisions that

denied service connection for a neuropsychiatric or anxiety

disorder and in the March 1985 rating decision that assigned

an effective date of May, 1, 1984, with respect to the grant

of service connection for post-traumatic stress disorder, as

well as in the December 1991 rating decision that found that

no clear and unmistakable error was present in prior

decisions.

As a general matter, the effective date of a claim shall not

be “earlier than the date of receipt of the application

therefor.” 38 U.S.C.A. § 5110(a). The assignment of an

effective date of May 1, 1984, reflects the date of the claim

of entitlement to service connection for post-traumatic

stress disorder which was granted March 1985. That decision,

is final, as is the December 1991 decision that found that

the March 1985 decision did not contain clear and

unmistakable error. See 38 U.S.C.A. § 7105©; 38 C.F.R. §§

3.104(a), 20.302, 20.1103. A final decision may be reopened

through a submission of new and material evidence. See 38

U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Evans v.

Brown, 9 Vet.App. 273(1996). However to qualify as new and

material with respect to the issue of an earlier effective

date for service connection for a disorder, the evidence in

question, essentially, would have to suggest an earlier

application for benefits with respect to the claim in

response to which the RO established service connection for

that disorder. See Moray v. Brown, 5 Vet.App. 211, 213

(1993)(for evidence to be material there must be a reasonable

possibility that the new evidence would change the outcome).

The claims file contains no evidence, submitted since March

1985, that the application for benefits that was adjudicated

by the March 1985 decision was submitted earlier than May 1,

1984. As such, new and material evidence of an earlier

effective date has not been submitted.

However, construing the veteran’s claim as a claim of error

in earlier decisions, the Board finds that the August 1982

decision which denied service connection was erroneous.

Under the applicable statutes and regulations, where evidence

establishes the existence of clear and unmistakable error, a

prior final decision will be reversed or amended.

38 U.S.C.A. § 5112(b)(6); 38 C.F.R. § 3.105(a).

The Board observes that United States Court of Veterans

Appeals (Court) has defined clear and unmistakable error as

an administrative failure to apply the correct statutory and

regulatory provisions to the correct and relevant facts. See

Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). The

Court has also held that such error "must be based on the

record and the law that existed at the time of the

prior...decision." Russell v. Principi, 3 Vet.App. 310, 314

(1992). The mere misinterpretation of facts does not

constitute clear and unmistakable error. See Thompson v.

Derwinski, 1 Vet.App. 251, 253 (1991). The error must be one

which would have manifestly changed the outcome at the time

that it was made. See Kinnaman v. Derwinski,

4 Vet.App. 20, 26 (1993). "It is a kind of error, of fact or

law, that when called to the attention of later reviewers

compels a conclusion, to which reasonable minds could not

differ, that the result would have been manifestly different

but for the error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993).

That standard in this case has been met.

In the August 1982 rating decision, the RO denied a claim for

service connection for anxiety neurosis, holding that a

nervous condition existed prior to service and was not

permanently aggravated during active service. There is no

evidence that anxiety neurosis or another psychiatric

disorder was present prior to service, and service medical

records do not contain findings relating to a psychiatric

disorder. In fact, earlier decisions that denied service

connection for a psychiatric disorder, including a January

1972 Board decision, specifically noted the lack of evidence

of a neuropsychiatric disorder during service. The

incongruous finding in August 1982 was unsubstantiated by the

evidence in the claims file at the time of that decision and

constitutes error.

Moreover, at the time of that decision 38 U.S.C. § 312

(currently 38 U.S.C. § 1112), which had been amended by

Public Law 97-37, effective October 1, 1981, provided for a

presumption that, in the case of any veteran who was a

prisoner of war for not less than 30 days, “any of the

anxiety states” which became manifest to a degree of 10

percent or more after service, would be considered to have

been incurred in or aggravated in service. The evidence

associated with the claims file at that time established that

the veteran was a prisoner of war from December 1944 to May

1945. Furthermore, the claims file contained medical records

that clearly established the presence of a compensable

“anxiety state” at various points in time after service. For

instance in June 1950, the veteran was hospitalized in

connection with a diagnosis of “[a]nxiety reaction, chronic,

moderate, manifested by tension, insecurity, and somatization

reaction. Unimproved.” There is no question, therefore,

that had the RO correctly applied the laws in effect at the

time of the August 1982 decision, a manifestly different

result would have obtained and service connection would have

been established for a psychiatric disorder at that time.

The Board observes that its analysis in this case is

complicated by the RO’s December 1991 determination, which is

now final, that clear and unmistakable error were not present

in the rating decisions of August 1982 or March 1985.

Generally, in keeping with the rules establishing the

finality of decisions, once there is a final decision on the

issue of clear and unmistakable error, that claim of

unmistakable error may not be raised again. See Russell v.

Principi, 3 Vet.App. 310, 315 (1992). “It is res judicata.”

Id.

However, where a claim of clear and unmistakable error is

premised upon a different theory than addressed in a prior

final decision, the new claim may be treated as different

from that previously adjudicated. See Russell, 3 Vet.App. at

319. In such cases, the prior determination does not stand

as a bar to the adjudication of a claim of error under the

new theory.

The December 1991 rating decision leaves somewhat unclear the

rationale for its determination that neither the August 1982

nor the March 1985 rating decision were “clearly and

unmistakably erroneous.” The December 1991 rating decision

characterizes the August 1982 decision having “denied service

connection [for anxiety neurosis], as [a] condition was not

shown to be compensable.” The characterization of the August

1982 decision is incorrect. The December 1991 decision later

adds: “While the evidence of record shows a long history of

variously diagnosed neuroses, reactions, and personality

disorders, prior treatment reports and examinations do not

show that the veteran had a chronic anxiety state on October

1, 1981, or at an earlier date, which resulted in social or

industrial impairment.” Arguably, by mischaracterizing the

August 1982 decision, the RO failed to address at least one

theory of clear and unmistakable error advanced by the

veteran at the time of the December 1991 rating decision,

that the August 1982 decision was erroneous because it

concluded that a psychiatric disorder existed prior to

service.

Conceivably, the December 1991 reference to the lack of a

chronic anxiety state resulting in impairment, reflects a

determination by the RO that the evidence failed to clearly

establish that the veteran’s disability had been manifested

to a compensable degree since service and, consequentially,

that he would have found entitled to service connection under

the applicable statutory presumption had the case been

properly adjudicated. As such, the RO’s decision may be read

to include a determination that any error in the case would

not have produced a manifestly different result.

If so, while the December 1991 decision may have, in a round-

about fashion, addressed the veteran’s theory of error, the

Board finds that the RO’s December 1991 decision, in finding

that the error would not have produced a different result,

itself contained clear and unmistakable error. The Board

finds, in this regard, ample evidence, as alluded to above,

that a psychiatric disorder diagnosed at some point after

service manifested itself to a compensable degree.

The Board observes that its determination that the December

1991 rating decision contained clear and unmistakable error

is consonant with the principle that such prior adjudications

of clear and unmistakable error are generally res judicata.

The focus of the Board’s determination in this case is the

implicit determination in December 1991 that any error would

not have produced a manifestly different result, rather than

an underlying determination that error did not occur. As

such, the premise of the Board’s decision that clear and

unmistakable error was committed in December 1991 does not

constitute simply a readjudication of the initial decision in

August 1982, the merits of which are ultimately brought into

question.

Because, however, the Board finds clear and unmistakable

error in the December 1991 decision as it pertained to the

rating decision in August 1982, it also finds that the August

1982 decision, as outlined above, was erroneous.

The claim that was adjudicated in August 1982 was filed by

the veteran in May of that year. Although generally, the

effective date of a grant of service connection is the date

of claim, “where compensation, dependency and indemnity

compensation, or pension is awarded or increased pursuant to

any Act or administrative issue, the effective date of such

award or increase shall be fixed in accordance with the facts

found but shall not be earlier than the effective date of the

Act of administrative issue. In no event shall such award or

increase be retroactive for more than one year from the date

of application therefor or the date of administrative

determination of entitlement, whichever is earlier.”

38 U.S.C.A. § 5110(g). Accordingly, if a claim is reviewed

at the request of a claimant received within one year of the

effective date of a liberalizing law, benefits may be

authorized from the effective date of the law. 38 C.F.R.

§ 3.114(a). The May 1982 claim was filed within a year of

the effective date of Public Law 97-37, which established the

legal basis for the veteran’s entitlement in 1982 to service

connection for a psychiatric disorder. The effective date of

that public law, October 1, 1981, therefore, is the proper

effective date for the grant of service connection for post-

traumatic stress disorder.

Although, the veteran contends that he is entitled to an

effective date as earlier as June 1950, the date that the

veteran filed his original claim for service connection for a

nervous condition, the Board points out that his claim for

service connection was denied by the Board of Veterans’

Appeals in January 1972 under the laws and regulations then

in effect. As a result, all prior RO adjudications back to

1950 were subsumed in the Board’s decision. Therefore, they

may not be attacked on grounds of clear and unmistakable

error. A Board of Veterans’ Appeals decision is of course

final and is not subject to review by the undersigned

signatory member. It is noted that the veteran did not

attempt to reopen his claim following the Board’s decision in

1972 until he did so in 1982.

Inasmuch as this decision addresses the 1982 claim and awards

an effective date back to October 1981, and no effective date

earlier than that is permissible, the Board concludes that

the veteran’s current claim has been fully addressed.

ORDER

An effective date of October 1, 1981, for service connection

for post-traumatic stress disorder is granted.

BRUCE KANNEE

Member, Board of Veterans' Appeals

Hope this helps a vet.

carlie

[broncovet]

Carlie..

Thank you. I am not sure about the "one shot" Cue thing either, that is why I am asking! I will try to find a link, but I seem to recall reading it on hadit that Vets only had one shot at the CUE.

I guess that question could also extend to a NOD...what if a Veteran timely files a NOD, then realizes, for example there were unadjuticated claims! Can he file a second NOD on the same claim, but maybe with different issues?

[carlie]

Carlie..

Thank you. I am not sure about the "one shot" Cue thing either, that is why I am asking! I will try to find a link, but I seem to recall reading it on hadit that Vets only had one shot at the CUE.

bronco,

That's why I bothered to post all that info for you.

In Russel it shows that the claimant can most certainly advance a case for

C&UE that was previously denied, now claimed as a C&UE under a

different theory.

I guess that question could also extend to a NOD...what if a Veteran timely files a NOD, then realizes, for example there were unadjuticated claims! Can he file a second NOD on the same claim, but maybe with different issues?

Sure, the claimant could do this as long as it is all accomplished

within the one year time frame that is allowed for a NOD.

carlie

[free_spirit_etc]

Thanks Carlie! That is some pretty useful information!

[jerrbilly]

Look at it this way,

If you only had one shot at a CUE the VA could then purposely err after the first CUE and never have to worry again about a CUE being filed. An error is an error whether it be the VA's first time or third time, it's still an error if warranted by the evidence.

Jerr

I read that in filing a CUE a Veteran has only "one shot" to get it right, or forever be barred from filing a Cue again. Does that apply to a single decision? What if that decision has multiple issues, and there were multiple CUE violations? What about "unadjucated" issues, that is, what if a decision failed to address an issue at all, so the Veteran was unaware the decision was "deemed denied"?

I just realized this "deemed denial" thing opened up a can of worms with Cue. In case you are not up to speed a "deemed denial" means if you apply for 3 issues, and the VA issues a decision on just one, the other two are "deemed denied" and the one year appeal clock starts..Veterans are required to file a NOD for claims that have never been decided because the court considerers them denied. Its one of those Va loopholes that frustrates Veterans.