Cue

[john999]

Where is the best documentation to determine if you might have a CUE? What are the basic elements of a CUE? When I look at my VA claim I know I was screwed over for years, but that does not mean I have a CUE. Before I wake up the monster I want to know if I even understand the concept.

John

[Guest fla_viking]

Dear Jhon

Go back to the old postings here on hadit on CUE. There are some excellent case law and discussioin on CUE.

I have talked to lawyers about CUE. THey doent do CUE cases because the court made it so hard to win. My personal case is the definition of DUE but my lawyer would not proceed because he see no way to win. Now I dont know why that is. But I talked to one lawyer and he said the deifinition of CUE is not what the courts are ruling on. its like they got a catch 22 in progress. :You have to appeal a VA CUE all the way up or its not the VA fault. If you do appeal alll the way up, Then its someone else fault other then the VA for the CUE to occure and they dont pay CUE for others fault that is not the VA's.

You might get great satisfaction puting in black and white what the VA did and have it exposed once and for all and then go on enjoy life. Or just start enjoying life now without the VA battel.

Terry Higgins

[john999]

Terry

When you do a CUE are you reopening your initial claim?

[Berta]

John- a CUE is a collateral attack-(VA lingo for attacking their legal error) on a past unappeled decision that you did not NOD and continue- It could on part of a decision-say you accepted one part of the decision but never appealed another part if it.

The date of the decision is important- prior to Bell 1992 constructive notice rule.

CUE:

1. final VA decision

2. clear legal error

3. retro that you should have gotten but didnt.( a manifested different out come)

Every time those adjudicators and raters pick a DC code or refer to a 38 CFR citation in their decision- they are setting the stage for CUE if they are wrong.These are legal aspects that can be cued.

Legal error only-not medical error,not failure to assist,not balance of doubt doctrine weighing- only

legal-

If you read some of the stuff here-

and at the BVA and CAVC you can get a good picture of it-

Say the VA rates a vet in 1995 with the wrong DC code-

they base their percentage rating on this and the vet is happy with the award and does not appeal it.

Then say the vet comes to hadit- thinks about some of the posts here and realises that he/she was given the wrong diagnostic code -based on the med evidence they used in 1995-and therefore wrong rating and he/she actually fitted into a higher %. The vet can successfully CUE their past decision and get retro.

Lets face it- they sure makes errors on claim- I dont think they ever sent me anything right from the gitgo that was right-in years-

It is well worth a vet's while to look over past decisions.

[Guest fla_viking]

Dear Jhon

When I filed my CUE. I made a motoin for CUE directly to BVA. I skiped the RO process and saved me 3 years. A motin for CUE is not a reopen of a claim. But a review of your claim as it was decided when the CUE took place.

On my CUE motion I put at the vert top as the lawyers who help vets say to do. "this is not a motion for reconcideraton" if you dont put that down and warn the BVA. The VA will assume it is a motion for reconcideraton and if so you loose your right to appeal to the court.

Terry Higgins

[Berta]

Terry- you filed a Motion at the BVA because the BVA decision is where the CUE was-

if John is cueing a VARO decision- he needs to file the CUE there.

Odd how the VA lawyers interpret this however-

I had an old VARO decision I cued on my offset amount-

They denied and it went to the BVA and they denied- many years ago-

Even though my CUE made absolute sense with VA case law and the FTCA documentation I had as to the offset-signed by General COunsel- the BVA still denied and then I did a horrible thing!

I said oh well -this is the VA-what do I know!

I forgot about it-

About two years ago the VARO- when I re-opened my claim -had to check with RO district counsel to see if I was really stating the truth- about my husband's death-

as soon as counsel pulled out the paperwork, they saw that the offset was wrong and they cued the VARO and sent me the money-

what is odd here is that I guess counsel cued the initial VARO decision over the BVA one-

they can do that but we cant. We have to CUE the entity that committed the CUE.

[john999]

Berta and Terry

I am going to file a CUE on the initial decision I got for SC in 1973 at the VARO. I did not appeal the initial decision or NOD it since I did not even know I could do that, and I was way to out of it to do something like that. My attending doctor said I was unemployable and the VA never considered that at all. I was completely disabled and I got 10%.

I want to be sure that I am not re-opening my claim since I am P&T and I don't want to mess with that. My position is that the VA had evidence of a much more severe disability and just ignored it. Is this CUE? I don't want to be dragged in for another C&P exam or any of that nonsense.

So I send the CUE to the VARO since that is the decision I am dealing with?????

John