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marl00

Cue Or Appeal All?

Question

We listened to the radio interview on CUE with Carlie, all your opinions would be appreciated.

We received an award from our Milwaukee RO (it was sent back to RO from BVA). It stated the brain tumor was benign; but, it was malignant. Isn't this a "fact" that can be persued under a CUE? The outcome would change as it would provide two years of total temp disability, as opposed to the three months granted of total temp.

There are another issue concerning the brain tumor that was omitted although addressed. There was another issue on the appeal that was miscategorized and would change ratings based on symptologies.

Should or could we CUE that one issue or best to put the whole decision together?

imo, I would like to attempt to CUE. Based on your radio interview, is this a "fact"> Yes. (This is an either fact> benign or malignant.) Does it change the outcome of the decision?> Yes, if won, 21 months of total temp. We'd like to do a CUE and appeal the rest. Opinion?

Also, can anyone recommend an attorney? We have used a VSO and a timely issue had expired. We have used an attorney but basically we had to do most of the work on any appeal. But we will need one to go to CAVC.

Your responses would be greatly appreciated. ~marl00

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Cue is always the last resort for a decision you did not timely appeal. Its never the first thing you consider. If you can appeal the issues, it is always better than waiting and having to meet the Cue standard of review.

There are many good attorney's who represent claimants at the CAVC. I recommend one that is licensed with the CAVC and/or also NVLSP.

If they have never heard of NVLSP, they are probably not the attorney you want.

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We did not file late> the vso did, so asking for any recommends on atty for CAVC.

Question still is> to cue or no?

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So, I take it you passed the one year appeal period. There are lots of things to consider before you file a CUE.

One alternative to CUE is to reopen under 3.156 B or 3.156 C. Both require new and material evidence. Do you have N an M evidence to support your claim?

If you do, you can go ahead and re apply. If you are awarded benefits, and dont like the effective date, you can always file a CUE later, since there is no time limit to file a CUE.

If you were not awarded the benefits the first time, it is going to be even harder to get a CUE.

CUE errors need to be outcome determinative, they have to be undebatable and not a matter of difference of opinion or interpretation, and they have to be based upon the laws and the evidence at that time.

If it were me, I probably would go for a reopen due to N and M evidence. Then, after I got sc, you can go for an eed via CUE, arguing that you should already have been sc earlier, but not for the error.

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We listened to the radio interview on CUE with Carlie, all your opinions would be appreciated.

We received an award from our Milwaukee RO (it was sent back to RO from BVA). It stated the brain tumor was benign; but, it was malignant. Isn't this a "fact" that can be persued under a CUE? The outcome would change as it would provide two years of total temp disability, as opposed to the three months granted of total temp.

There are another issue concerning the brain tumor that was omitted although addressed. There was another issue on the appeal that was miscategorized and would change ratings based on symptologies.

Should or could we CUE that one issue or best to put the whole decision together?

imo, I would like to attempt to CUE. Based on your radio interview, is this a "fact"> Yes. (This is an either fact> benign or malignant.) Does it change the outcome of the decision?> Yes, if won, 21 months of total temp. We'd like to do a CUE and appeal the rest. Opinion?

Also, can anyone recommend an attorney? We have used a VSO and a timely issue had expired. We have used an attorney but basically we had to do most of the work on any appeal. But we will need one to go to CAVC.

Your responses would be greatly appreciated. ~marl00

Can you please post the decision letter, w/all your personal info blacked out, so that we can give you an informed opinion?

Thx,

pr

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no,no. the appeals were not filed late. just saying regarding VSO, we used them but they filed late and we lost a right to appeal based on the late filing. but this was mentioned in regards to finding a lawyer to appeal to BVA or to CAVC. otherwise, my filings were done timely. still looking for legal counsel...

i was asking if we should cue ourselves on the one decision where BVA based their decision on stating the tumor was benign. So clearly, this was in error and a statement of fact; that the tumor was actually malignant. Also, would this change the outcome= yes. We were granted 3 months of total temp post surgery but if was found malignant, minimum would be 2 years total temp.

then i was asking could we just cue this or appeal the whole decision, in total?

thanks for the dialogue and opinions. sorry i wasn't clear about what i was asking.

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