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Filing Of Cue


RSG
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Question

can't seem to find out what more, in the way of forms or paperwork, I might need to file a CUE. over and above the Letter or SOC I am mailing. Is there anything else I need to do...

RSG

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  • HadIt.com Elder

A simple statement alleging what the CUE us will be enough. A 4138 will suffice. Are you sure you don't mean an NOD for appeal, or a request for reconsideration?

A CUE is not a judgment call. It has to be pretty blatant where any rater would say "Thats wrong."

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  • HadIt.com Elder

I would run your CUE by someone who knows exactly what a CUE is and then if the VA denies it get a lawyer. File your CUE, but expect a denial. Then you send in your NOD and hire a lawyer to fight this thing. If CUE's were cut and dried there would be no BVA and CAVA.

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  • Moderator

Yes John you are correct.

remember that a CUE is a collattarel attack on a final decision.

You have to show them ehere they made the legal error and how it affected you or caused you harm. (Cost you money).

It can be done.

J

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  • HadIt.com Elder

That's right, it has to be on a final and unappealed decision. This is something we forget. Really, this is a pretty steep slope to climb. Your CUE can only be based on the facts that were with the VA at the time or should have been in the decision. Also, the regulations at the time control if it was a CUE or not. Today we have the VCAA. You can't file a CUE on not getting VCAA right 25 years ago. I suggest that vets look at their horrible old decisions from 30 or 40 years ago. The VA played fast and loose with the facts in those days. Review your two page decisions and see what you think.

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Even not getting a VCAA letter now - is not a CUE - it's a procedural error of due process.

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The CUE has nothing to do with this claim for IU..The CUE is for the past 40 years, since 09 to 69. The VA continually denied me any and everything for this period of time time.....They never gave me any C&P's , absolutely nothin for all those years even though I have struggled with this mental health issue for a very long time..Since 69.....That is why I am filing...RSG

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  • HadIt.com Elder

RSG

A CUE must be very specific and based on a final and unappealed decision. For instance, the VA has your SMR's but they ignore them in your decision, and deny a claim that is documented in your SMR's. The denial becomes final. That is what I think the level of a CUE would be but others here know more. Look at the decision you got in 1969. What was the evidence that was in the VA's hands or should have been in their hands and what was the exact decision? This is what your CUE will address if you want a CUE going back to 1969.

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All the information was in the VA's hands.. I was denied because they used information that was, and it has been in my SMR's,since day one... and they have ignored all the facts up until 2009....when the BVA said they were wrong...and the VA used untrue and fabricated facts on their part.......and totally ignored my SMR's and never issued a C&P exam

for any of the multiple claims i filed....RSG

RSG

A CUE must be very specific and based on a final and unappealed decision. For instance, the VA has your SMR's but they ignore them in your decision, and deny a claim that is documented in your SMR's. The denial becomes final. That is what I think the level of a CUE would be but others here know more. Look at the decision you got in 1969. What was the evidence that was in the VA's hands or should have been in their hands and what was the exact decision? This is what your CUE will address if you want a CUE going back to 1969.

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Ron-I feel you have basis for one of the BEST CUE claims I have ever seen in over 20 years.

I found the CUE I prepared for you and the references and Exhibits to their legal errors.

I used the BVA decision as part of your evidence and suggested recently that you ask any elder here for input.However-

I think any VSO who understands CUE -or a lawyer if they deny-would gladly represent you on this CUE.If they wont represent you-it doesnt matter as this claim and evidence speaks for itself.

I felt that the BVA handed a CUE to you on a silver platter.

The 38 CFR and M21-1MR citations are in the claim.

The BVA decision is a hyperlink in the claim and the General COunsel Pres Op is easily accessable by the VA PCs.

I have been trying to take time off here all week- getting a farm project done-

but saw this today-

You dont need to send in nothing but copies of the Exhibits A,B, and C that I stated in the CUE claim.

Exhibit A 38 CFR 3.303 2 pages

Exhibit B LA RO decision dated June 17,1969 1 page

Exhibit C LARO decision dated 3/10/72

and Rating Sheet 3/2/72 21-6796 2 pages

BVA decision August 20, 2009 available at (XXXXXXXXXXXXXXXXXXXXXXXX_) I dont think you wanted the decision shared (They(VA) can access that in one click in the hyperlink I put into the claim)

VA Office of General Counsel Precedent Opinion # 3-2003 11 pages (They can access that readily and the BVA decision references it).

I have read it all over carefully many times.

Since no one here has any further suggestions for it- I would copy it and send it in with the copies of the decisions and copy of 38 CFR$ 3.303 as above - with proof of mailing if I were you.

Edited by Berta
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Yes Berta,

Thank you for your help.. I weill run copies if those documents and mail them....I did submit the CUE to John999, and jbasser as you suggested. I have of yet to hear any comments.....from either. I sent them a complete copy of what I am submitting....Thank you again for all your help..... Please, I have tried download these sections of the Cfr's and thia computer just won't do it. can somebody send me a link to these cfr's or something...The are listed in the previuos message from Berta.....thanks

RSG

Edited by RSG
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38 CFR - 3.303

http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/38cfr3.303.pdf

§3.303 Principles relating to service connection.

(a) General.

Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease

resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.

This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.

Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection must be considered on the basis of the places,

types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records

and all pertinent medical and lay evidence.

Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the

Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

(b) Chronicity and continuity.

With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough,

in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease,first shown as a clearcut clinical entity, at some later date.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation

to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word ‘‘Chronic.’’

When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic

or where the diagnosis of chronicity may be legitimately questioned.

When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

© Preservice disabilities noted in service.

There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no addi- tional or confirmatory evidence is necessary.

Consequently with notation or discovery during service of such residual conditions

(scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs;

supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service

the conclusion must be that they preexisted service.

Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service.

In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure

manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior

to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin.

Congenital or developmental defects, refractive error of the eye, personality disorders and mental defi- ciency as such are not diseases or injuries within the meaning of applicable legislation.

(d) Postservice initial diagnosis of disease. Service connection may be grant- ed for any disease diagnosed after discharge, when all the evidence, including that

pertinent to service, establishes that the disease was incurred in service.

Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.

presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not war- rant service connection without their aid.

[26 FR 1579, Feb. 24, 1961]

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Thank You..

RSG

38 CFR - 3.303

http://edocket.acces.../38cfr3.303.pdf

§3.303 Principles relating to service connection.

(a) General.

Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease

resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.

This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.

Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places,

types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records

and all pertinent medical and lay evidence.

Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the

Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

(b) Chronicity and continuity.

With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough,

in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease,first shown as a clearcut clinical entity, at some later date.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation

to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word ''Chronic.''

When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic

or where the diagnosis of chronicity may be legitimately questioned.

When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

© Preservice disabilities noted in service.

There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no addi- tional or confirmatory evidence is necessary.

Consequently with notation or discovery during service of such residual conditions

(scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs;

supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service

the conclusion must be that they preexisted service.

Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service.

In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure

manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior

to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin.

Congenital or developmental defects, refractive error of the eye, personality disorders and mental defi- ciency as such are not diseases or injuries within the meaning of applicable legislation.

(d) Postservice initial diagnosis of disease. Service connection may be grant- ed for any disease diagnosed after discharge, when all the evidence, including that

pertinent to service, establishes that the disease was incurred in service.

Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.

presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not war- rant service connection without their aid.

[26 FR 1579, Feb. 24, 1961]

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http://www4.va.gov/ogc/opinions/2003precedentopinions.asp

The # 3-2003 Precedent Opinion in the CUE letter is here-and referred to in the BVA decision.

That BVA decision should be right in your C file Ron and is still at the BVA web site.

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Thanks for the links folks,

my other computer died and I am having a bit of trouble getting everything workin....LOL

I appreciate the help...RSG

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Ron- you don't need to send them more than the citation Carlie gave you and copies of those older decisions.

There isn't anything more frustrating than PC problems when dealing with the VA.It happened to me at the last minute when I was fighting my last claim and my computer man was in India.I ended up using a PC in a library 30 miles away.It was miserable.

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Hi Berta,

Yeah, I'm tryin to get those 3 decisions off the other computer.....Yuck.......

Can't scan the originals either. Not till programs reinstalled.......Shoot.......Oh well, few more day's isn't gonna kill me now, I hope.....

But, thank you.....RSG

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The ratings decisions and their dates are right in the BVA decision Ron-

and they should still be in your C file ,as the BVA specifically mentioned them.

I wouldn't worry about that if you cant scan or copy them to enclose.

But it is a shame that we often have to send VA what they already have anyhow.

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