tdiu Big Question On A Cue

[Hollis]

I just back from my VSO, I was with him for about 11/2 hours. We found several mistakes the VA has made over the passed several years. UPDATE: in 1984 I was denied SC for hearing loss and tinitus, they just sent me the letter saying I was denied. I being young and dumb at the time said the hell with it. In 2009 I asked that my claim be reopen and it was. I had to jump thru the loops to prove my nexus. MY SMR shows I had slight hearing loss when I went into the service and that was the reason I was denied. I also was never given a C&P, I have documentation from memos from inside the VA to cancell my C&P. I have filed a cue and NOD 2-3 times. still they are said it was preexisting. But the kicker, they grated me my SC based on the that it was agaggravated due to my time in service. My ETS physical shows that my hearing was pencil in showing all "0" (better than super man) in all areas. So I have my SMR show slight hearing going in and granted SC for aggravation and exiting the service showing I have great hearing .My VSO said I might want to send this thru one of my SENATORS OR REPRESENTATIVES, however he warned me that the VA might retaliate and not grant me my TDIU if I show how wrong and flawed the were, and EMbarrassed them in A congressional investigation.. BTW one of my senator in on the veteran affairs board. So my question is, and I only asking for opinions here, should I file this with my senator that sits on the VA board or just hope I can get TDUI. I know the back pay would be large, vs. THE MONTHY CHECK of 100%. I know it all would be nice, and the money is seconary right now, I just want justis.

Thanks,

Hollis

Dog Handler 38th sdp

[carlie]

Morning Berta, my CUE is on my hearing. I filed for a claim on my hearing back in 84. I was never given a C&P, I was just denied. But since I have gotten my SMR, I have found things to support my CUE. My AO is on IHD CAD, and with that I filed for TDIU. I know you are very knowledgeable in this area, and I trust your thoughts and suggestions. Man I would love fo you to look over this for me.

Best way to help is for you to post the exact rating decision received for the 1984 claim,

minus personal info like name, address, claim #, etc...

Not being given a C&P does not make a CUE.

Also, most likely since we are talking 1984 - probably denied under not well grounded,

this is pre VCAA - just about anything could be reason for denial.

[Capt.]

Hello Carlie and Berta,,,,,Ok ,,,I give up...... I read the regulations on QUE and it appears that the QUE can only be used when a Claim is finished ...over ...final decision....closed. But I also see that Berta states to ask the ROs to file a QUE on themselves with problems that come up BEFORE a claim is at the end or final decison. So which is it ....can you ask the RO to file a QUE on themselves while in the appeals state. My lawyer says no way ....... I am just looking at the regulations but both of you seem to have had some experience of doing this. Maybe the RO did not understand the Law and you all were able to pull the wool over their eyes and play a little poker and BLUFF them into action they had to take.

I don't want to hijack this thread from Hollis but it seems he may be in for a pickle and might need to know the answer to my question also. NEVER GIVE UP. God Bless, C.C.

[jbasser]

CC you can ask them anything you want if you are not being shielded from the VA by an attorney.

We have been down that road before.

I just got in. I will call you in the afternoon after I get some sleep. May be heading to LA.

J

[Berta]

_..can you ask the RO to file a QUE on themselves while in the appeals
state. My lawyer says no way ....... "

Tell your lawyer I say WAY!

This worked for me in December 2011 and VA reversed their denial that was only 2-3 weeks old.It worked for me in the past as well but those errors were not as significant as the ones in my Nehmer decisions.

I pulled it again a few months ago NVLSP was aware of my successful tactics in Dec 2011 using this CUE approach and also that I asked them to CUE one specific part of my erroneous Nehmer decision,that resulted from the successful CUE request in December.

NVLSP (The National Veterans Legal Service Program)who I have had a relationship with since 1991 thinks very highly of my extensive expertise regarding the VA claims process. They even advised a CAVC lawyer to contact me via hadit once for some help with his case,which I promptly did help with.We got a joint remand. It is still at the CAVC I think.

You lawyer might have said No way because he sees no basis in your situation, for this type of approach.

Then again a claimant must have a strong basis in a recent decision that is still in the appellate period to request that the VA call a clear and unmistakable error on itself,due to a legal error that manifested the outcome of the decision.

I will definitely succeed on the issue I told them to CUE themselves on because my legal evidence is undebatable and they still owe me cash (the manifested altered outcome due to their legal error.)

My post here today might sound strong. I went to a Military school, that is run by the USMC, and I learned how to think out of the box.

There is no such thing in the Marine Corps as 'No way'.

Members here can take my suggestions as to having the VA cue itself, if VA made a legal error to their detriment, in a recent decision, fully still in the appeal period ...I posted my recent template for that here somewhere.

or they don't have to consider it at all.

It has worked for me.

I also got a double DRO review VERY fast in 2005 because I used this tactic.

I have exhausted the subject of CUE and have no desire to even get into this CUE forum anymore.

Your lawyer can call Rick Spataro NVLSP in Washington DC to verify that Berta Simmons , NY is not a nut case on this CUE themselves VA point. I will find Rick's number if needed. We usually chit chat via email.Sometimes by phone.

My NVLSP Nehmer lawyer probably still even has the Nehmer award I got that my CUE yourself VA request produced.

Then again, your lawyer might have seen no basis at all in your situation to even consider this tactic.

Edited February 25, 2013 by Berta

[Berta]

Better yet: this is from fairly recent email from Rick Spataro , Head Nehmer Lawyer of NVLSP, to me on another matter :

"Good luck with the 1151 CUE claim. It’s in interesting tactic and probably not a bad idea if you’ve had success with it before and you’re still within the appellate period to file an NOD in case it isn’t successful"

I have another CUE claim filed too ,under 38 USC 5107 under 1151 but I think he means here the one I filed in October on the Nehmer award.

My other NVLSP lawyer,Ms Monyei , who represented me under Nehmer,has the actual info on the other December VA CUE itself claim that succeeded in mere weeks due to their erroneous decision of Dec 2011.

[Philip Rogers]

I'm going to go out on a limb, here. In order for the claimant to pursue a claim of CUE (not QUE, sorry Capt!) the decision needs to be final, first. The definition of CUE is different for the VA's side of it. They can call it a CUE anytime they want because they can apply the term "clear and unmistakable error" in the normal sense of the phrase. Remember VSR's are not lawyers, they just apply the rules as "they" perceive them and can correct them when they want. jmo

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