What To Write/submit For Cue Inferred Claim

[autumn]

Seeking help in what to write to send in claim for CUE/EED due to "inferred claim".

i meet these numbered items from the list in link below:

#4. Informal/Inferred Claims can lead to an EED.

#7. When Vet applies within a year of discharge.

:filed the month i was discharged

#8. Clear, Unmistakable Error can lead to an EED.

:have IMO detailing this

#3.157 visit to the clinic can establish the claim effective date

:true for me, plus i have C&P from that pereiod stating "severe chronic disese..." that VARO ignored.

:evidence from mil med records VARO ignored

:errors from navy PEB ignoring medical evidence

I don't get a response from VSO when i presented this to them so i figure i'll need to file myself.

I don't know what form, and what to write or not write when submitting claim for CUE substantiated by at least the above items i listed. looking for advice on this...

[autumn]

“and a CUE regarding the many time evidence ignored and medical conditions not pursued “

I don't see either one of those situations as a CUE basis.

Not enough here to know and maybe best to tell us more when you get copies of your past decisions .

I am confused on this and it looks to me that maybe the EED they gave you was correct.

In filing CUE claims it is necessary to have the actual past unappealed decisions so that the CUE error can be determined. I sent VA copy of the actual decision I cued and the rating sheet was with it.

I don't see how one can file a CUE claim without the actual decision.

Have you requested a copy of your C file?

Also I assume your vet rep has a POA file on you and might have the older decisions in it.

appreciate your help.

it was the rating decision from 1986 dr bash mentions is CUE.

i can't even make sense to this board which is my issue not anyone here. i seem to get that a lot lately. LOL

[71M10]

It looks like The controlling factor on effective date for MS will be the date it was diagnosed in conjunction with filing dates and such. You will not be able to CUE for lack of diagnosis or misdiagnosis. The document that diagnosed it, may very well constitute an inferred/informal claim, it then needs to be sorted out whether it was deemed denied and has become final, whether a request for a formal claim was made, or if it remained unajudicated prior to the current decision. If it was unadjudicated and the diagnosing document is determined to be an implied claim than the effective date should be the date of diagnosis (since nor formal claim was on file).

Clear as Mud??

[autumn]

It looks like The controlling factor on effective date for MS will be the date it was diagnosed in conjunction with filing dates and such. You will not be able to CUE for lack of diagnosis or misdiagnosis. The document that diagnosed it, may very well constitute an inferred/informal claim, it then needs to be sorted out whether it was deemed denied and has become final, whether a request for a formal claim was made, or if it remained unajudicated prior to the current decision. If it was unadjudicated and the diagnosing document is determined to be an implied claim than the effective date should be the date of diagnosis (since nor formal claim was on file).

Clear as Mud??

i appreciate the insights.

clear as mud? yes & no...the realm of inferred claim gets muddier. here's some thoughts and cases in points ...

And what of the Federal Circuit returned, holding on several occasions that the decision in Roberson v. Principi requires "sympathetic reading" to the veterans' filings ... determining all potential claims ..."

before i get blasted for inserting that tidbit, read on...

I'm aware that, Brokowski v. Shinseki, the CAVC returned that the "sympathetic reading" requirement does not obligate the Board to conduct an exercise in prognostication. However, the VA manual does mandate that VA raters must adjudicate all claimed disabilities, and all chronic disabilities found in the service medical records, even if they were not specifically claimed.

it didn't say C-File, it said, "service medial records".

and what of VA Adjudication Procedures Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated.

Manual M21-1MR, Part III, subpart iv, 6.B,2. states:

"When preparing a decision, the RVSR must recognize, develop, and/or decide all issues, whether expressly claimed, implied, informal, potential, mandated, or ambiguous."

Manual M21-1MR, Part III, subpart iv, 6.B,3. states:

"An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern."

and to add:

regarding, Coker v. Nicholson, 19 Vet. App. 439 (2006), didn't CAVC reject the VA argument that because the veteran had not discussed his foot condition in relation to a claim for compensation his bilateral foot condition was not before the VA?

and, the clemons v. shinseki, case and what it returned.

and what of documented procedural errors on past claims/appeals that happens to veterans ?

and what of legal theory, regulations, new legal arguments, etc ?

-------------------------------------------

yes, some of this thread is clear, yet much isn't. nevertheless, i'll move forward inch X inch.

clear as mud though for sure ;-)

[broncovet]

Autumn

My suggestion is to Consider every OTHER possibiliyt for an EED, and only then look at "cue" as a last resort.

Reason:

CUE is the most difficult standard to meet. Cue claims must be proven "undebateably". In claims OTHER than CUE, the Veteran gets the "benefit of the doubt", as well as the "doctrine of equipose".

You dont get BOD or DOE with Cue claims. So they are harder to win.

If there is something wrong with your car, always consider the "cheap to fix" things first. Does your car have enough water? Dont change the engine if all you need to do is add water.

In a similar way, dont handicap yourself trying to meet CUE if a simple appeal will suffice. Dont "give up" your right to Benefit of the doubt, unless you have to...that is, its been more than a year, and you can not qualify for any of the other possible EED theories.

[autumn]

Autumn

My suggestion is to Consider every OTHER possibiliyt for an EED, and only then look at "cue" as a last resort.

Reason:

CUE is the most difficult standard to meet. Cue claims must be proven "undebateably". In claims OTHER than CUE, the Veteran gets the "benefit of the doubt", as well as the "doctrine of equipose".

You dont get BOD or DOE with Cue claims. So they are harder to win.

If there is something wrong with your car, always consider the "cheap to fix" things first. Does your car have enough water? Dont change the engine if all you need to do is add water.

In a similar way, dont handicap yourself trying to meet CUE if a simple appeal will suffice. Dont "give up" your right to Benefit of the doubt, unless you have to...that is, its been more than a year, and you can not qualify for any of the other possible EED theories.

good intel. i'll research this. a BOD may be the way to go. does BOD go with "inferred claim"?

[john999]

Here is an examle of what I would consider a very good inferred claim for TDIU: A vet is rated 70% for PTSD and is on SSDI for the same condition. The VA has the vet's SSDI records showing the vet can't work. The VA should infer TDIU.

Here is an example where the VA should also infer TDIU: The vet is rated by the VA as 50% for PTSD and the vet is also on SSDI for PTSD and the VA knows it. The VA should infer TDIU

Another example is that a vet is rated 30% for PTSD and requests an increase and has an IMO from a psychiatrist that states the vet is unable to work and that his PTSD has gotten worse in recent months. The vet is currently unemployed. The VA should schedule a C&P exam and also consider TDIU. The VA should not dismiss the TDIU case just because the vet has not met the schedular requirement that they, the VA, made up out of thin air by ignoring 4.16b.

I know the VA has many claims where vets have met 4.16b for many years and the VA has not awarded TDIU. I think this is an error, but a vet will have a hard time proving it unless he/she can show the VA knew the vet was unemployable and yet refused to infer TDIU.