Cue At The Court

[john999]

If you want some insight into what goes into a CUE claim at the Court of Vet Appeals that has been all the way from the RO/BVA/Court you can look at my CUE which is recent by going to the Court's website and look under King, john. Then find John T. King #10-8234. This is what a lawyer can do for you. This is a very old claim I CUE'ed. The army threw me out when I was very sick and on anti-psychotic medications. This was just to save a buck and they threw me to the dogs. The VA also denied me my due process. I don't even know if I will win and what winning may mean. This is why you should hire a lawyer when you have one of these potentially rich retro claims. My lawyer did follow this CUE all the way from the RO.

[broncovet]

The following cases and interpretations may be helpful on CUE: In a nutshell, the VA's requirement to sypmathetically read and interpret the Veterans filings is applied first, then the "undebatablilty" of the Cue standard is applied.

he following are examples of types of error that the Federal Circuit and CAVC have found to be CUE in the past. The Federal Circuit has held that it may be CUE for the VA to fail to �give a sympathetic reading to the veteran�s filings by �determining all potential claims raised by the evidence, applying all relevant laws and regulations.�� In Moody v. Principi,74 the Federal Circuit considered a case in which the veteran had submitted several applications for benefits.75 In June 1994, the veteran submitted a claim for depression secondary to his service-connected prostatitis.76 The RO granted service connection, as well as total disability based upon individual unemployability (TDIU), and assigned an effective date in June 1994, reasoning that this was the first time the veteran had claimed that his psychiatric disorder was secondary to his service connected prostatitis.77 The veteran filed a CUE claim, arguing for an earlier effective date for TDIU, on the ground that his prior benefit claims, combined with the evidence in the record at that time, were sufficient to raise an informal claim for secondary service connection for a psychiatric disorder.78 After the RO rejected the claim, the veteran appealed to the CAVC, citing a recent case in which the CAVC had held that the VA has a duty to �fully and sympathetically develop a veteran�s claim to its optimum.�79 The CAVC affirmed, reasoning that the new CAVC case set up a narrow factual scenario that gives rise to an informal TDIU claim and was distinct from the instant case.80 On appeal, the Federal Circuit held that the CAVC had missed the broader point, namely, that the VA must give a sympathetic reading to a veteran�s filings.81 The CAVC held that whether the veteran�s filings merited an earlier effective date was a factual question and remanded for readjudication.82 As such, the Federal Circuit confirmed that it may be CUE for the VA to fail to liberally construe filings.

Notably, in a precedent opinion of the General Counsel of the VA, the General Counsel agrees that this error can potentially qualify as CUE, but states that in order to grant a CUE claim of this type, the VA must conclude that (1) it is obvious or undebatable that, when prior filings are construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded by the VA; and (2) the VA�s failure to recognize that claim manifestly affected the subsequent award of benefits.83 This policy appears to be at odds with the Federal Circuit decision on the matter, which did not indicate that it must be �obvious or undebatable� that prior filings, when liberally construed, show that a claim for benefits was previously filed. Indeed, the Federal Circuit held that �the veteran is not required to show . . . that the �evidence undebatably established that an informal claim for secondary service connection was filed prior to 1994�� and that any ��ambiguity� . . . in [the veteran�s] earlier pleadings should be resolved in favor of the veteran.�84 Accordingly, even though it is a CUE claim, all that the VA must determine in order to satisfy the first question is that when prior filings are liberally construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded.

[john999]

Bronco

In my CUE claim the medical report that the VA excluded said I was unable to work. If that is not an informal claim for TDIU I don't know what is, but since the RO excluded that information it was never considered. If the VA has two medical reports one which is favorable to the vet and one which is unfavorable, and the VA can simply exclude the favorable report then no vet can get due process. That is one aspect of my CUE. They just &^%$ all over me back in the day and did not even include appeal rights. The BVA wants to use the dictionary definition of "undebatable" but that is not the VA's meaning according to case law. In legal lala land every one has a debatable meaning.

[broncovet]

John...

Wow...I did not know our claims were that similar, as that is exactly what the VA did to me..they shredded the part of my claim where I told them that I was "unable to get a job". We probably should compare notes, it sounds like this is a VA "favorite thing".

If you PM me, I can let you know, in detail, what I have found about this.

Bronco

[broncovet]

John

I sent you an email to the addy in the PM. I like the idea of "lowering the standard of review". That is, you may not have to file a CUE even if it has been over a year...there are a couple instances when you do not.

1. If the claim is still pending. If they did not adjuticate the claim, then it would still be pending unless they can call it "deemed denied". It is getting tougher and tougher for them to deemed deny it, because now the Veteran has to have a reason why he would reasonably think his claiim was denied. I dont think they can get away with just not mentioning it anymore.

2. If there are Service medical records. These are treated differently than just ordinary evidence. You see, if you reopen a claim due to N and M evidence, then the earliest effective date you can get is the date you reopened, which probably wont help you. This is not the case with SMR's..you can get the effective date all the way back to when you filed.

If the VA did a "denial of process" error, then it may not be necessary for you to file a Cue or meet its standards, because the Va can not deny you due process. In my case, they denied me due process by failing to file a SOC, which renders the claim pending. The same thing occurs if the RO fails to file a SSOC when you submit more evidence. An error of SOC or SSOC amounts to a denial of due process keeping the claim pending. There are other process errors, too. One, I think, is if the VA failed to give you notice that you can appeal. Thats a no/no.

[john999]

My due process rights were walked on all to hell. I never got appeal rights. This is 1973. There are some missing records but I have never been able to find . Probably would not help me anyway since the military doctor was a pimp for the command and probably would have done anything to keep from being put on a plane to Vietnam. Many of what we consider due process now the BVA said are duty to assist. This can't be part of a CUE. Plus the flash that "no matter how unfair a decision is that can't rise to a CUE". They told my lawyer that we were just complaining that the decision was not fair. We are since they did not consider any of the evidence that would have helped me get a higher rating. We must avoid any inkling of " a reweight of evidence of record". We are not asking them to reweigh it since they never weighed it to begin with and admit that. There are at least 6 issues we are bringing up including due process. You can't have due process if the agency only considers evidence from a VA doctor and excludes evidence from my private doctor who saw me for 6 months while the VA doctor talked to me one time for ten minutes. They even used a statement from some unnamed orderly that I "seemed to get on with the other mental patients". This they say trumps my doctor's six months of observations. The VA used to actually send doctor's a form to fill out with DX, prognosis,discussion etc. This they ignore and decide the rating based on hospital notes. I was originally DX'ed with a "nervous condition,unspecified". What the hell is that? That could be anything from "shell shock to hydrophobia". The old decisions are just pretty awful.