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AF1982

Is It Cue For Va To Fail To Cite 3.344 (5 Year Standards?)

Question

Is it CUE for VA to fail to cite 3.344 (5 year higher standards) and instead only cite 3.105(e) in a proposal to reduce?

I just battled over a year and won where they tried to sever me entirely.

Now they have just came back (a little bit angry maybe?) trying to reduce my 60% status knee replacement (replaced twice) with a 30%.

Don't they also have a do a complete exam (and not just a couple of select body parts?)

VA also didn't mention my secondary claims of lower back, left hip and now what was my good knee (right knee). I thought they had to do a review of my entire medical condition (maybe Brown v. Brown and in relation to the 5-year stabilization requirements 3.344.

They didn't do a complete or even accurate c&p (the report left out important information, which luckily my wife documented/recorded and so we can prove).

I think the RO is a little upset for losing the CUE against me.

I appreciate any feedback. Thanks guys and gals!

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I don't think it is a CUE because it is not final yet, but the VA must look at your entire disability picture and determine that you have clearly and definitely improved. The burden is on them when they propose to reduce you. Are you TDIU?

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I think the RO is a little upset for losing the CUE against me.

Can you scan and post an exact copy of the CUE - without your personal info.

like name, claim #, address, etc . . .

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@AF1982 how did you win your Sever claim with the VA did you have a Lawyer? the VA is trying to do that to my husband he had a hearing today for the VA to hear his side they didnt even go thru with it because his unit back in 2001 did his L.O.D investigation wrong so VA is going to sever his comp six months from now based on his L.O.D investigation being done wrong by his unit...we also was told that he can go and fill out a DD 149 to summit to the army to get his L.O.D done right..im thinking now is the time to get a lawyer

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Cue has to be an "outcome determinative" error. Things like VCAA notice violations are not outcome determinative. You have to go back and look for an error that would be outciome detrminative, and a VA failure to cite this on its reasons and bases is not outcome determinative. You could get the benefits or be denied them the same whether or not they cited a particular regulation.

The CAVC has said, to the effect, that the Board merely citing a regulation in its decision is no guarntee that the Board decision complied with the applicable regulation.

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It is not enough that the Ro or BVA made an error to be CUE. There is much on "harmless error"...the courts recognize the VA often commits "harmless error" that does not determine the outcome.

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