Nehmer Cue

[warren]

I read the veterans claims self help guide that is here on hadit. Here's my understanding of cue: a cue can't be made on judgement but can be made on - decision was based on in correct statement of the facts as they are known at that time. the va asked doctor at vamc for a medical opinion.

evidence reviewed:

a.. veterans VA claims file review. he stated he reviewed my claims file, vamc records and private treatment. he lied, if he had reviewed my va claims file and private treatment records he would have seen that the earliest reasonable date for va purposes is 1997 not 2006, as the earliest resonable date for va purposes is 1997 not 2006.

b. in jan 2013, c&p exam. the veteran was seen by tele-medicine by the movement disorder division of neurology at vamc richmond, va.

The impression of the neurologist at richmond was: am inclined to think he has had parkinson's for 15 years, this was based on the veteran's self-reported history of tremor beginning in the 1990's. however, there is no documentation in the medical record for that time period. for that reason, this examiner feels that documentaton back to 2006 is the earliest reasonable date for va purposes. Both of these are lies, the neurologist's at richmond, had me to do some physical things and this is what he made his impression on, not my self -reported history. I have witnesses, my wife and two vamc nurses (i have their names). he stated that their is no documentation in the medical record for that time period. if he had my claims folder like he said he had, he would have seen documentation back to the late 1990's.

c. If i understand the self help guide, i can file a cue, because the decision was based on incorrect statement of the facts as they are known, at that time.

d. is this a correct interpretation for a cue.

GOD BLESS

[carlie]

This would not meet the criteria for cue.

[FormerMember]

The old three-pronged fork, Carlie- "manifestly changed" is the chucklebump few seem to be able to overcome at the AOJs. Can it be that for 30 pieces of silver there are those who will not see?

a

CP

[Philip Rogers]

File the CUE, if you want. Worst thing that happens is they deny you and you continue your appeal. jmo

pr

[jbasser]

Warren, the VA did not apply Title 38 part 3.156 to your claim if these records existed.There may lie your cue. These records were in posession of the Government but were not considered and they are trying to lie their way out of it.

That reg holds a lot of power for a vet.

J

[Berta]

A Nehmer CUE is very rare in my opinion,under the 2010 Nehmer regs, for the purpose of a better EED ....because

application of Footnote One in the NVLSP Nehmer Training took care of that.

There is a little more to the “correct facts” criteria:

“In order for a claim of CUE to be valid, 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 v. Brown,
 6 Vet. App.” 40, 43 (1993).” and
“The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination.  First, either 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 the time were incorrectly applied. Second, 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."  Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).”
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files3/1331264.txt

As ASKNOD said, also the “chucklebump” factor is critical.
Personal example:
My VARO denied my 1151 DIC claim in late 1997 , even AFTER I won a wrongful death settlement from 
the General Counsel VA in DC.
They did not list as evidence, copies of the settlement papers I had signed and sent to the VARO 
in support of the 1151 DIC claim.
I could have filed a GCY CUE within the appeals period but didn't even think of that tactic. Instead
 my phone call to the VA OGC attorney who settled with me, got them to reverse the denial info into an 
award very fast.
But ...say I had allowed the NOD time frame to run out and never contacted the OGC.
I would have had as claim of CUE under this criteria:
 “First, either the correct facts, as they were known at the time, were not before the adjudicator”

Maybe the MF (Mysterious force employed by my VAR0) had misplaced, removed, or shredded the settlement 
papers I had sent to them. The adjudicator therefore did not have the correct facts.But the correct facts, even if the MF lost my FTCA evidence, were at the VA n DC CUE claims depend on established evidence.
As long as the VA, somewhere, had the 'correct facts',that would validate a CUE.
Since the VA had the original settlement stuff at OGC in Washington DC, the correct facts had been 
established yet were never given to the adjudicator, as they were not listed as evidence.
I did file a CUE on that decision however,in 2004, under a different basis  and that is explained in 
our CUE forum.
In that CUE case, the VA was well aware of the facts ,the medical criteria had already been established,
and the evidence was in my C file so I filed it under violation of the mandate of SMC,38 USC 1114, and 
erroneous diagnostic codes, all of which manifested an altered outcome for me at time of the decision I
 cued...meaning the VA owed me some cash due to their clear and unmistakable errors. 
That was awarded as part of my Nehmer decision....but that was not a Nehmer CUE.
The AO IHD however had never been given,prior to the Nehmer award,  a diagnostic code or diagnosis 
but was an additional  CUE claim I had filed, so VA Nehmer people had to adjudicate this CUE as well ,
 so that it fell under Footnote One.

I know this stuff is confusing.
CUE claims require reading all one can on how to find VA legal errors, reading past decisions many many 
times (to include the ratings sheets), and then require proving to VA that the CUE manifested an altered 
outcome.

(meaning the VA owes you some cash)