Lost Cue The Impossible Dream

[john999]

My CUE at the BVA was denied. The BVA admitted that the VA excluded my doctor's evidence in my 1973 decision. However, they said that even if they had not excluded the evidence of "Chronic Schizophrenia" that I would still only be ratable at 10%. The BVA said that a statement from a VA doctor on the locked psychiatric ward that I got on well with the other mental patients was all they needed to deny that I was low balled on my rating. My doctor said I could not work or function in society. This is what reasonable minds conclude that life on a locked ward is the same as life on the outside. It is more complicated but that is the basic idea. My lawyer is taking it to CAVA. The VA said also that no matter how unfair a decision is that does not make a CUE. If they never gave you appeal rights that is also not a CUE.

[carlie]

John,

At this point I guess the best to hope for is that the CAVC

will say the CUE was that "My doctor said I could not work or function in society",

was of record and not considered in the original decision that granted 10 percent.

Sorry for the rotten azz news.

[pacmanx1]

I agree with Carlie, all is not lost. I found this on-line and it has been wrecking my mind for months. How did you file your claim? When was your CUE filed again?

Change Date

December 29, 2007

a. Definition: Clear and Unmistakable Error

A clear and unmistakable error (CUE) is an error that is undebatable in that a reasonable mind can only conclude that the original decision was fatally flawed at the time it was made.

b. Provisions of 38 CFR 3.105(a)

38 CFR 3.105(a) provides that if clear and unmistakable error is established in a previous rating determination, then the

· prior decision is reversed or amended, and

· effect is the same as if the corrected decision had been made on the date of the reversed decision.

7. Clear and Unmistakable Error (CUE), Continued

c. Determination Requirements

A CUE determination must be based on the record and the law that existed at the time of the prior decision.

In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim.

Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.

d. Identifying a CUE

A CUE exists if

· there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

· Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

· VA overlooked material facts of record, or

· VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA's failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

· CUE, see 38 CFR 3.105(a)

· potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and

· CUEs based on VA's constructive notice of medical records, see

- VAOPGCPREC 12-95, and

- M21-1MR, Part III, Subpart iv, 1.3. <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

Edited August 24, 2010 by pacmanx1

[john999]

Carlie

I was expecting it. Otherwise the VA owes me about a million dollars. No VA lawyer is going to sign off on that baby. Really, the standard in my claim cannot be met. I won two out of three of the prongs of the CUE, but the third cannot be met given the standards the VA quoted. In the words of George Bush the Elder "This will not stand".

[Commander Bob]

My CUE at the BVA was denied. The BVA admitted that the VA excluded my doctor's evidence in my 1973 decision. However, they said that even if they had not excluded the evidence of "Chronic Schizophrenia" that I would still only be ratable at 10%. The BVA said that a statement from a VA doctor on the locked psychiatric ward that I got on well with the other mental patients was all they needed to deny that I was low balled on my rating. My doctor said I could not work or function in society. This is what reasonable minds conclude that life on a locked ward is the same as life on the outside. It is more complicated but that is the basic idea. My lawyer is taking it to CAVA. The VA said also that no matter how unfair a decision is that does not make a CUE. If they never gave you appeal rights that is also not a CUE.

Sorry to hear this, John999. They compound their misdiagnosis with fancy foot work.

Well, at least we have a CAVA to go to now. I am so glad you have a lawyer.

[john999]

Bob

My lawyer was more pissed off than I was since I was expecting the drill. What is interestting is that the standard the VA has for showing that it is undeniable that evidence excluded from a rating decision would have made a difference in the decision cannot be met. Me and my lawyer agreed that it was impossible under existing laws to meet that standard. The CUE law in this area is a fraud. The VA says that it is wrong to exclude records or evidence from a rating, but then comes back and says it would not have mattered anyway. It seems the only way to win a CUE like mine would be if the VA excluded all the evidence except my evidence. You have to see one of these decisions to understand the degree of fraud involved.

[Berta]

Sorry to hear this John-and the CAVC could see things much differently.

. "However, they said that even if they had not excluded the evidence of "Chronic Schizophrenia" that I would still only be ratable at 10%."

In that case where is the 10% retro for all those years?

"My doctor said I could not work or function in society. This is what reasonable minds conclude that life on a locked ward is the same as life on the outside."

or the TDIU retro????? don"t give up on this John.CUEs have been awarded by the CAVC.