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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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Frank

If I understand you correctly your ear drum is rated at 0%, but the VA failed to inform you of their decision, Right?

Because the VA failed to inform you of your 0% rating, will not give you an increase percentage rate unless they made an error in their decision and you can prove it should have been higher.

If the VA had your SMR and failed to provide them to you I'm not sure what regulation they may have broken if any.

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  • HadIt.com Elder

VA Precedent Opinions for 1989 to 2003

http://www1.va.gov/OGC/page.cfm?pg=2

PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed.

Cir. 2004), and Case Law on Cue Claims Citation: Vet. Aff. Op. Gen

Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004

Law on CUE

A claim of CUE is a collateral attack on a final decision by a

VA RO or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir.

2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v.

West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967

(1999).

Pursuant to 38 U.S.C. § 5109A (a), a RO decision is subject to

revision on the grounds of CUE. See also 38 U.S.C. § 7111 (a)

(revision of Board decisions based on CUE).

"In order for there to be a valid claim of [CUE], there must have

been an error in the prior adjudication of the claim. Either the correct

facts, as they were known at the time, were not before the adjudicator

or the statutory or regulatory provisions extant at the time were incorrectly

applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc);

38 C.F.R. § 20.1403 (a) (upheld in Disabled Am. Veterans v. Gober, 234

F.3d 682, 696-97 (Fed. Cir 2000), cert. denied, 532 U.S. 973 (2001)).

CUE exists only when the error is outcome determinative, that is, the

error manifestly changed the outcome of the claim decision. 38 C.F.R.

§ 20.1403(a) and ( c); Cook, 318 F.3d at 1344; Bustos, 179 F.3d at

1381; Disabled Am. Veterans, 234 F.3d at 696.

"If it is not absolutely clear that a different result would have ensued,

the error complained of cannot be clear and unmistakable."

38 C.F.R. § 20.1403 ( c) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

Disagreements about how the facts were weighed or evaluated and

failures of the duty to assist cannot be CUE. 38 C.F.R. § 20.1403(d)(2)

and (3) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

If the evidence establishes CUE, an undebatable,

outcome-determinative error, the prior decision must be reversed or

revised, 38 U.S.C. §§ 5109A (a), 7111 (a), and the decision

constituting the reversal or revision "has the same effect as if the

decision had been made on the date of the prior decision," 38 U.S.C.

§§ 5109A (b), 7111 (b).

Edited by Wings (see edit history)
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Guest frank
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.

john, i put in for cue today, air force or navy,put down,hearing loss, i have never put in a claim for hearing loss, my claim was for puncherd ear drum,as stated om file in 1978, have letter from drictor granting me 10% for hearing loss,smr,state the same,today i got letter from va so i dropped,my appeals and letter to support my claim stating never did i ever file for a hearing loss,i filed for puncherd ear drum,also ifiled a cue on the award letter under cue, because punchered ear drum is from air force,and i am in hospital for it,so if every thing goes like i wrote va will have to go back to air force because they made a cue twice thank you for reading my reply frank
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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

i never filed for anything,as i stated i only filed one claim iin 78,va wrote no records found.end of story,in 1994 i apply for a penison va states i make to much money,i have been on ssi since 91, because i had pulled shoulder out of socket in 52,night we sunk the hobson,however va states accoring to your records of 1948,so va has lied in 78. i don,t get my records until 2003,then i find everything needed all these years,i find i am s/c for my ear ,no rating,expoosure to radiation occ japan,i am m21-1 part 111 chapter 5 this is authorized,however va never tell me of this,yes there is a c-p done in my name however i never went there for one i am 100% from air force, originating-unit adjudicition-21119 i don;t find thi out until 2003, in 2003 va gives me 100% ptsd, for air force, navy,but under no hospital injury,or recourtion.i have proof of what i state because i got these from va, today i put a cue on them frank
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Frank

I hope you get your money and service connection back to the Hobson sinking. If you got SSDI for the arm injury that happened on the ship that should be good evidence.

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Frank

I hope you get your money and service connection back to the Hobson sinking. If you got SSDI for the arm injury that happened on the ship that should be good evidence.

thank you john i did file a cue on them i also told va i can file in fla and there is not a dam thing they cam do about it,i have a aware letter all ready this is not even dated so i might take trip yto florida,get the files there talk to them there get the ok and nj can go to hell as long as i keep jersey as my perment state i can till use florida to file i got all the cue ready to go papers ase set so i should have no problem thank you frank
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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

John:

" My position is that the VA had evidence of a much more severe disability and just ignored it. Is this CUE?"

If you can form this into a legal error- such as questioning the DC code and the rating they used- it could be a valid CUE-

That Korean vet whose claim I refered to here many times got retro back to the 1950s-

However they could award CUE in your case but only back to the Bell July 1992 decision-

John- if you have the VBM there is much there on CUES-

but- more than anything I prepared a good CUE by stduying CUE claims awarded and denied at the BVA and CAVC.

You file the CUE where the CUE occurred.The VARO- in your case-

I disagree -someone suggested a CUE cannot be filed on a VARO decision-

cant find that post-

Yes it can-

The VARO is working on my CUE regarding a past VARO decision they made in 1997, which was never appealed.

It was in Rating board and is now with the Supervisor , a coach for the post- determination team.

They said I would have decision on both claims in two weeks-

After I filed the CUE they sent me a letter maybe 6-8 weeks ago on it,that didnt make much sense- I responded to it- and re-stated the CUE and enclosed again, the VA case law as evidence that supports it.

If one cannot CUE a VARO decision they never appealed -the VARO would have promptly used that reason to deny it.

Although my 1998 CUE was denied ,as I said, Counsel saw it and awarded it-by making them CUE the same decision I cued and didnt pursue-

So- a VARO can be CUEd.

Also sometimes we say CUE is a one shot deal- I have changed my mind on that- I have seen CUEs at BVA that were not granted yet the decision clearly stated the veteran was without prejudice to file another CUE.

If one CUE doesn't fly- it can be manipulated into a different type of collateral attack, as a different CUE.

Legal errors are those that-as soon as a rating person or adjudicator picks up 38 CFR or M21-1 and uses a citation, diagnostic code, or rating criteria from 38 CFR and puts it into the decision- this is where the legal error can lie.

If the medical evidence has been misinterpreted, and they err on the legal aspects of it, this is the CUE scenario.

WHen I asked them to CUE there decision last Sept- in essense they did that-they had too- they had commited legal error on my claim already-but I did not have a final unappealed decision to CUE so I put the onus on them. and it worked-

CUE claims themselves tell one all they need to know as to what is what on CUEs-

and the VBM has some excellent chapters regarding CUEs.

Edited by Berta (see edit history)
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Guest frank
Dear Jhon.

IF you did not appeal that VARO ruling. The court says you cannot claim CUE. However you being to ill and the VA taking advantage of that has never been before the court on a CUE claim before. But I doubt if it will work.

Terry Higginsdear terry,i have talked about the new agt of congress called special orerations,i wish you would all read what this is about,you are all useing old rules,specials operations,gives you the riget to reopen a claim no matter hoe old it is,i called va ,they are sending forms to fill out, for this new act i think you should all read it,just go to va home page scrool down the page is at the bottom,read it i think you have a good chance to reopen,open a new claim or one that,has been deined,giving you a chance to start over fresh,worth looking into, frank

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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.

pearl, my problem is a lot differand,i have60 appeals in proof of every one, to back up my appleas all proof was found in va files,right now va isn,t saying anything because every statment made by va there is also letter to prove thim all are cue,so thry are going toput a lot of work into and they will not win, frank
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Dear Veteran

Re opening a claim is differnt that CUE or getting bavk pay. I have not read the new rules yet. IF they change my mind on this I will post so.

Terry Higgins

terry,i am not trying to reopen,a claim,i only opened 1 in my whole life,in 78, i had served in air force,and navy, when va answered my claim, they stated,no records found,i had spent 7 months in hospital in japan,got a cfr,chapter 5, part 111, m21-1, i was on wasp the night we sunk the hobson,i got my records in 2003, everything i needed all those years was tnere, i have 55 appleals,for cue, and i can prove every one of those ever one, frank
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