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Cue


john999

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  • HadIt.com Elder

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

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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

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Terry

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

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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.

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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

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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.

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  • HadIt.com Elder

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

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  • HadIt.com Elder

You know I looked at the initial decision I got for SC in 1973 and there was no C&P exam. The VA just used hospital records and SMR's. I see no where in the weird decision where my doctor's report was examined or listed. I got a copy of the doctors report from the VA when I asked for my C-File. The initial decision itself looks incomplete and I have never seen one like that since. I know I got screwed but it was over 30 years ago and I wonder if I have all the records of the decision. The VA said they sent me my entire C-File so I guess that was it.

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That is my take too Terry-

if they had what they needed in 1972 but erred in the decision legally- CUE occurred and as you say Bell can help recover from July 1992 on-if the 1972 CUE can't fly.

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  • HadIt.com Elder

If the VA erred in 1972 I could only get back pay from 1992 forward??? The VA had the doctor's report in 1972 but they just did not include that as part of the evidence they used to low ball me. If I can only get back pay from 1992 onward then there is no reason to file a CUE to me since by then I had overcome the worst parts of my old disability (on my own I might add). I think I need to read a lot more cases before I open up this crazy can of worms. What seems obvious to me is probably not obvious. I just get the impression that the whole purpose of the law regarding vets is to find ways not to pay them.

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If the VA erred in 1972 I could only get back pay from 1992 forward??? The VA had the doctor's report in 1972 but they just did not include that as part of the evidence they used to low ball me. If I can only get back pay from 1992 onward then there is no reason to file a CUE to me since by then I had overcome the worst parts of my old disability (on my own I might add). I think I need to read a lot more cases before I open up this crazy can of worms. What seems obvious to me is probably not obvious. I just get the impression that the whole purpose of the law regarding vets is to find ways not to pay them.

John, remember that the C& P's and doctors notes are just a tool for the rating specialists. They still get to decide what degree of disability they feel you deserve. It is supposed to be governed by 38CFR, but we all know they can easily circumvent that. At my last C&P the ortho doc said that my rating for cervical radiculopathy would be between 10 and 30%, of course the rating specialist chose 10%. I believe it should be 30%, but I choose not to battle with them any longer over it. I'm not sure that not giving the percentage that you feel you deserve would be a CUE claim. As was stated earlier it must be a legal error that would cause your decision to be different. They've covered themselves pretty well. Also anytime you ask for a reconsideration of something they can legally go through your entire claim file, that is why many on the the other sites advise against this unless you are sure you have an airtight claim. I have Cued two of my past appeals and was successful. On the last one the wrong rating code was used and this caused me to received less retro in 2005. Also they failed to award me a secondary rating for my carpal tunnel syndrome. These both were legal errors. They changed the outcome of my decision and raised my rating another ten points (90%).

Pearl

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Pearl

I have a bunch of small fry things I know I could use to increase my rating but I am P&T and unless it is something really serious I won't get into it. I am bitter over the way I was treated when I first got out of the Army and came in contact with the VA system. If I had played ball I know I could have gotten a higher rating. I was just one of thousands of vets that got slam/dunked by the VA. The VA used my inpatient records to rate me. All I had to do was throw a few chairs around and I could have gotten a much higher rating. I checked out AMA and that is why the VA psychiatrist said I was just a hippie and social misfit. I was not trying to get a disability rating. I was trying to get help. That was my mistake.

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John

I just had my BVA Hearing today in Washington DC. It appears to have going better than I expected. Time will tell I'll be keeping my fingers crossed.

I had evidence that should have been reviewed by the BVA/VA from my medical records but was not. This was a BVA decision from 1980. I had other issues I addressed as well at the hearing.

Off the record, I was told to summit the evidence that you feel was not reviewed under 38 CFR 3.105 (a). Than follow through the VA process for decision or BVA appeal.

3.105 Revision of decisions.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(B) (2) will apply.

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In my husbands BVA hearing, he had, in my opinion, an excellent law judge hearing his case. When we brought up issues that they seemed to know nothing about or couldn't find the info in his records, I had the information and they asked if they could see what we had. I had additional copies of things which I took to the hearing so I was able to give them a copy of it. They seemed concerned that I was able to give them this information, while it did not appear that the RO had even looked at it.

Two issues were granted instant approvals. The others were remanded back due to the fact that they stated that the RO had not requested a new C & P exam since these claims were so old and also it appeared that they had also not requested his latest med records to review. In the end, my husband was finally given a 90% rating, but was being rated at the 100% rate due to their grant of I/U P&T with no future exams.

I think it is very important to be as prepared as possible when you go to any hearing. I had copies of the pertinent information which I felt to be the most important to his claim which the RO used in their denial. I wanted to be sure that I could back up what I was saying to them with hard evidence, even though this should have already been in my husbands file. I also didn't want the law judge trying to rummage through his file to try and find the evidence that I was pointing to. I wrote a letter for my use in the meeting. I had everything documented with what I wanted to bring up and say. I read the letter and as I came to an area I wanted to expand on, I stopped reading the letter at that point and went on to further discuss the issue at hand. I handled the entire hearing for my husband. While we did have a SO who was in attendance, he knew nothing about my husbands claim and I felt that I could handle dicussing the issues better. You have as much control over the hearing as your SO. Never feel that you cannot speak up at the hearing if you feel there is an issue which should be brought up or discussed. As they always say, it is your claim and no one can handle it better than you yourself.

A BVA hearing is a very important process within the VA claims process. Go into the hearing knowing that a lot of the information which you have already given to the RO will be brought up again in the BVA hearing as though it was never submitted. While you hate to feel like you are starting the claims process all over again in the hearing, it can feel that way. You want to be able to get the whole side of your story out to these people who will have your claim in their hands and could be making a final decision themselves on the outcome.

Don't know how I got so far off on the BVA process, but this is written only from experiences that I have had and the outcome was completely approved in my husbands favor. Everything that was before the BVA was approved.

Others may have different outcomes from their experiences, but I think if we share what each of us does at various times through the VA process that results in a favorable decision, then I think it can only help others who are going through the same process themselves.

mssoup1

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mssoup1

You are exactly right, that's how I presented my case at my BVA hearing yesterday. My law judge was very understanding and appeared to show an interest in what I was claiming.

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Well, it seems you have gotten over one big hurdle. A BVA hearing is rough enough without ending up with a law judge who appears as though he would rather be somewhere else and doesn't seem the least bit interested in anything you have to say. Glad yours seemed to work out for you. Now comes the waiting period. Hope everything goes in your favor. Good luck and keep us posted on the outcome.

mssoup1

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Guest frank

i only opened i claim that was in 1978, i asked for medical records for puncherd ear drum va wrote back no records,i did not appeal but kept trying over the years to get my records,i got those records in 2003,in records was a rating done in 1993 s/c for puncherd ear drum,could i usd this rating for a cue,in 1978? and what would i ask for? i might add va never informed me of this,since i got records everything is in appeal thank you frank

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Frank

1993 s/c for puncherd ear drum

Was this SC given a % of disabilty or diagnostic code? Did you ever have a C&P exam back than? You state everything is in appeal. What did you file for?

foreveryoung

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Guest frank
Frank

Was this SC given a % of disabilty or diagnostic code? Did you ever have a C&P exam back than? You state everything is in appeal. What did you file for?

foreveryoung

in 46-49 52-56 i was in air force and navy, i filer in1978 for medical records,va stated no records found in 2003 i received all records found rating done in 11-4-94 rating tated re-open claim s/c for puncherd ear drum and m212-2 chaptre 5 part 111 expoed to radiation occ japan i now understand now what they radiation came from p-51 as i was s/ag for those plains,have all records from 2003 to prove my claim also rating granted for s/c 1993, another dated accoring to your records of 1948 i might add va never informed me of this ,so i want to use statment of 48 for a cue in78 no records found i spent 7 months in hospital in japan appeal are for navy as well as air force 100% was granted for air force,100% was granted for navy ptsd o i would like a cue for 1978 no records found ,when va had them all the time. frank
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Frank

I believe you can file under 38 CFR 3.105 (a), like I stated to John. Someone here please correct me if I am wrong or off base.

Make a copy of your SMR where it states you had treatments or problems with puncherd ear drum in service. Also state medical record were never provided. If you have any proof that you requested SMR during that same time add them as well. Sent all the information to the VA quoting the below regulation "Revision of decisions". Than follow through the VA process for a decision . If the VA comes back with a denial file a NOD. It may end up at BVA for CUE.

3.105 Revision of decisions.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of 3.500( (2) will apply.

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Guest frank
Frank

Was this SC given a % of disabilty or diagnostic code? Did you ever have a C&P exam back than? You state everything is in appeal. What did you file for?

foreveryoung

foreveryoung, thank you for your answer,the claim in 1978,was never opened, va stated no records found,so hoe could i appeal, but in 1994 i apply for penson va states you are non service connected,for medical penson but your income is to high,ACCORING TO YOUR RECORDS OF 1948 so i want to file a cue for va has trapped themselfs in a lie. frank
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