Vso Told Me That I Could Not File A Cue Because The 1Year Time Limit Had Expired On Original Decision

[Shyne-I]

Hello all,

I met with a VSO rep who was actually some kind of Vice-president in the Veteran's Service Organization. To make a long story short....he told me that it was too late for me to file a CUE on my 1995 0% rating for sinusitis. Is this true??... It seems so contrary to what I've read here on hadit.

Shyne

[Shyne-I]

Thank you Philip and John,

I'm not sure what his angle was....I rephrase the question like 3 times to make sure that he understood that I was wanting to file a CUE. I even told him that I understood that you had to file a NOD within 1 year, but my understanding of a CUE was that a Clear and Unmistakable Error had been committed on the part of the RO and that it can be filed at any time after the decision became final. He still said that my opportunity to challenge the rating had past because I did not originally disagree with the decision before my year was up. Go figure....and this guy was supposed to be one of the best in Dallas!! I'm kind of afraid to deal with him on any level now!!

Shyne

[Shyne-I]

Thanks all,

I will definitely do that, I have a lawyer handling my social security claim and my hearing is on Wednesday. She advised me that they had a lawyer on staff that handled VA claims. I spoke with him once right after I filed my claim for an increase in sinusitis last year but he just sounded so negative about my chances of winning my Fibromyalgia claim so I chose to go it alone. I will try to test his knowledge a little more now that I have a better understanding of how the VA operates...thanks to the information I have received from all of you!!

P.S. Another thing I wanted to ask was based off some information that harleyman sent me. He said that the VA has gone back to handling sequential claims because of the backlog and wanting to boost there numbers so it seems as if they are handling claims faster; so now you can send in a new claim behind a claim that you already have pending and can get a quicker decision on the new claim. Has anyone had any experience with that yet?

Shyne

Edited August 1, 2013 by Shyne-I

[john999]

Don't be too surprised if they don't jump right away at your CUE. It is a risk for them. You may have to shop it around. I did.

[jbasser]

What is this VSO's name/

We may need to investigate.

J

[Shyne-I]

Okay, thanks John and Jbasser his name was James Henderson.

Shyne

[carlie]

A claim of CUE is submitted on a FINAL - UNAPPEALED DECISION.

38 CFR 3.105

Example:

http://www.va.gov/vetapp13/Files2/1317617.txt

Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. There must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993).

Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43.

Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k) (2012).

The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination:

(1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied;

(2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and

(3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.

Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14; see also Wilson v. West, 11 Vet. App. 383, 386 (1998).

The revision of a final rating decision based on CUE generally will involve the assignment of an earlier effective date for those benefits involved because the governing regulation requires that benefits be paid "as if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.105(a).

In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2002); 38 C.F.R. § 3.400(b) (2006). The effective date for increases is generally the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). With respect to disability compensation, the earliest effective date that may be assigned is the date as of which it is factually ascertainable that an increase in disability has occurred if the claim is received within one year from such date otherwise the effective date is the date of claim. 38 C.F.R. § 3.400(o)(2).