Cue Questions In Claims Research Forum

[Berta]

I have been seeing a lot of CUE questions in this forum.

The criteria for CUE is here:

and explained Ad finitum if one reads over the CUE forum .

Also, earlier I mentioned to a poster here as to how one can ask the VA to CUE themselves on a pending claim or, as in this case, on a denied claim.

Luckily, instead of rattling off again how I did that, I found Carlie's post to exactly what I mean, here:

regarding

http://www.va.gov/ve...es5/0844495.txt

in our CUE forum.(Clear and Unmistakable Error)

Although CUEs are not appropriate for Duty to Assist violations,this case explains how 38 USC 4.6 can work .

It takes the Evidentary requirements of 38 USC and CFR and ,in some cases, during the appeal period, if VA violates that regulation , they can be asked to CUE themselves.

In the case Carlie posted ( a BEAUTY! Thank you Carlie! .....And somehow I missed it until today)

The BVA stated:

“The veteran's assertion of CUE is based on VA's failure to

consider highly relevant medical evidence, that is, the RO

denied the existence of medical evidence that was clearly of

record at the time of the rating decision. The Board is

convinced that the RO committed error based on the record and

the law that existed at the time the decision was made and

had the error not been made, the outcome would have been

manifestly different. Grover, supra.

This error is significantly more than a disagreement as to

how the facts were weighed or evaluated. Crippen, supra.

Rather, it was a denial of the existence of facts of record.

Moreover, a persuasive reason has been given as to why the

error manifestly changed the outcome. This reason is that

had the error not been made, a compensable rating for

irritable bowel syndrome would have made effective the day

following separation from active military service, rather

than the day that a VA outpatient treatment report noted

irritable bowel syndrome. This review for CUE is based

solely on the evidence of record at the time of the February

2000 rating decision. Russell, supra. “

This decision supports my point on how 38 USC 4.6 can work to get VA to CUE themselves or to support CUE in a past decision.

But I posted this here in Claims Research to remind all here that we already have significant info in our CUE forum and I don't think the CUE criteria and other info there is being read first, before suggesting a CUE scenario,in some of these claims questions.

CUE is a collateral attack on a VA decision, on a decision that federal employees have been trained to prepare.

In my case the VA fought my 2004 SMC accrued CUE claim for 7 years.

A CUE almost always rests on a past denial and few CUEs can be claimed on a pending claim.

Although the CUE forum has grown, many answers and discussions are there on what is and isn't a CUE.

If you have a CUE question please look over the CUE forum first , that way we advocates don't have to repeat here what we already have posted many many times.

.... gee that doesn't sound nice.....sorry.....

actually it helps us a lot more, for anyone with with a CUE question, if one takes the time to understand first exactly what VA defines as a CUE and then why they think VA committed a CUE in their regard, based on VA's definition of CUE.

PS, I just filed another 1151 claim yesterday and will promptly refer VA to 38 USC 4.6 and to the legal part of this BVA decision if they give me any crap like ignoring my evidence and I will ask them to call a CUE on themselves.

I enclosed 6 pieces of probative evidence, all they really need for this claim, to include a "as likely as not" statement from a VA cardio in VA Central and the other medical evidence is all from the VA.

Edited September 22, 2012 by Berta