Cue Question

[HSCM]

I just got done with a C&P as a result of an appeal of allergic rhinitis, and sinusitis. While I was there I got my C&P files from my prior exams. While looking at it, I found that my first C&P has an error. I am currently rated at 10% for lumbar, the C&P makes no mention of my ROM. My ROM was tested for turning but not for flexion which I know was done. To further confuse the matter I have a request to have my percentage increase for my lumbar. I am thinking I will end up at 20 or 40 when it is done.

Do I have a case for a Cue, or is there a better route?

[john999]

To do a CUE your decision must be a final one. Did you appeal the 10% rating of your lumbar?

[HSCM]

I didn't because I didn't catch it till now, about two years post the decision. I am asking for an increase, the only reason it is even important is because I was rated 80% at the start, 14 months later 90% when a new condition was added. It would give me the difference between 80% and 90% for 14 months in retro pay. About 3K

[broncovet]

38 cfr 3.156 allows you to open with new and material evidence. Cue is based on the available evidence at the time of the decision. However, we would have to see the entire C file to see if there is a CUE, but Cue has to be "undebateable" and based on the evidence at the time.