Cue "one Shot"

[broncovet]

This time, I know where I read it..it is from Jim Strickland, and it is here:

http://jimstrickland912.com/CUE.html

Earlier I asked about this "one shot" cue, and the general consensus was that it was bunk. (my slang for "bunkum" or "BS").

Still, I do think Jim Strickland is both knowledgeable and credible. So, I will ask again..is Jim Strickland wrong, or are we only allowed one CUE? This is from J.S's "A to Z guide to VA Disability Benefits"

[jbasser]

I have not seen any reg posted that says you cannot file more then 1 cue.

One cue for each error.

J

[Philip Rogers]

You can file a CUE on each error. Whether the VA will properly entertain each is another matter. jmo

pr

[Berta]

I answered this question already in 2 fairly recent posts- you could ask Jim Strickland for a citation to support what he said if we do not appear to be answering your question to your satisfaction.

"Since the moving party has failed to comply with the pleading

requirements set forth in 38 C.F.R. § 20.1404(:P (2008), the

CUE motion must be dismissed without prejudice. The Board

notes that this disposition is more favorable to the moving

party than a denial on the merits would be, as the moving

party is free at any time to resubmit a CUE motion with

respect to the January 6, 2006, Board decision, since a

dismissal without prejudice does not preclude such a

refiling. See Luallen v. Brown, 8 Vet. App. 92, 95 (1995);

see also Simmons v. Principi, 17 Vet. App. 104, 111-15 (2003)

(holding that in asserting CUE, where the claimant fails

simply in the pleading rather than on the merits, the

appropriate decision is to dismiss the claim without

prejudice to refilling rather than to deny).

ORDER

The motion for revision of the January 6, 2006, Board

decision which denied the Veteran's claim of entitlement to

service connection for the removal of ovaries and for

premature menopause, on the grounds of CUE, is dismissed

without prejudice to refiling.

____________________________________________

J. A. MARKEY"

from:

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

There is no one shot deal on CUE.

A CUe claim-just like any other claim can often be successfully re-characterized and along with the citations identified as to the legal errors the VA made, it can succeed.

I found a CUE in a past decision I got that the RO and even the BVA denied many many years ago. I didnt appeal it because I figured -although the denials didnt make sense -

that the VA somehow knew what they were doing and they were right.

I have learned since that they dont often have a clue on what they are doing and can be be wrong.

The regional counsel VA was given my C file when I re-opened my claim in 2003 and had to confirm some stuff I stated in it as to my wrongful death award.(I think it was the sentence that said-"when the VA killed my husband in 1994 etc etc with references to the final Negligence reports)

He found the CUE and immediately told the VA to award the proper retro.

This is one unusual example of fact that CUE is not a one shot deal.But we cannot depend on any VA lawyer to re-characterize or discover a CUE however.

Many vets have re-filed their CUE claims.

CUE claims don't depend on the general consensus-they depend on legal evidence and a fulfillment of the CUE criteria in 38 CFR.

[Philip Rogers]

We had a vet here who won a claim, for prostatitis(sp), back to 1955. The VA had been calling it something else but the symptoms were the same. They ended up calling it a CUE and he won about $37k, retro to 1955.

pr

[broncovet]

Berta

Thank you for repeating yourself, and I am satisfied with your case citation that, (even tho the case you cited may not be precedential) you really know what you are talking about. (Yea..I know..Im slow..every one else already knew that)

I guess I am, well, in disbelief, that Jim Strickland would publish such an error, because I have found Jim's information to be highly accurate and up to date. I think someone should tell him, because Vets go to his "A to Z Guide" and rely on that to make decisions on their claim. Jim need's to either retract his statement or back up his position with CASE Law, CFR's, M21's, Veterans Benefit Manual, etc. Notice I did not say back it up with the VA website, because I do not find all the VA website informtion to be credible. For example, I am still pretty sure the VA website lists the backlog at 400 and some thousand, while Walcoff, on 60 minutes, did not dispute the 1,000,000 claims backlog number. As a senior spokesperson for the VA, if that 1,000,000 number was way off, he should so state. By his silence on the issue, he is agreeing with the 1,000,000 number, and admitting the website number is a lie.

PS. I am not badmouthing Jim Strickland. He is a volunteer VA advocate who has given hours and hours of his time to help Veterans without compensation (as you have also). However, it appears he simply made a mistake..like all of us do.

Edited January 4, 2010 by broncovet

[Pete53]

Its very important to research any legal question back to Law and CFR's. Opinions can be wrong no matter who makes the opinion.Over many years I have seen quite a few opinions reversed. Gardner who sued the VA to service connect an injury to a botched operation was considered impossible but he won.Before he won Veterans had claim after claim dismissed cause you could not sue the VA for bad medicine.