Cue On Original Claim

[NavyWife]

Hubby has 4 denials all for exactly the same thing.

If he wins a cue claim on his first, original decision- would he get backpay all the way back to that first decision?

Edited May 4, 2014 by NavyWife

[carlie]

cue retro's back the effective date, to the day of the prior claim.

[john999]

Yes, that is the real power of a CUE. If you CUE happened in 1950 then it is as if you were service connected or given the correct percentage in 1950. The VA then tries to use any evidence available to lower the rating for the next 60 years. So your CUE win says the vet should have been rated 100% in 1950. The record shows that 3 years later he skipped a C&P exam. The VA can use that evidence to lower the 100% to 50% for the next 57 years if there is no counter evidence to show the vet is still 100%. This is the way I understand it.

[NavyWife]

Can I get some opinions on the CUE I think I found. It is based on violation of 2 statutes--

38 CFR 4.1 which requires an exam for the application of the ratings schedule and 38 CFR 3.103 in which his Due Process rights were violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced. The Due Process violation is so common, I found it listed in the M21-1MR- Part 1, Chapter 2, Section A- in the instructions for processing CUE's.

Thoughts? opinions? anything I should take out or put in????

Also, do I need to argue that subsequent 3 decisions were made invalid by 1st decision, as they were all seeking a rating of 40%?

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CUE FOR ORIGINAL RATING DECISION OF 1990

I propose to present a detailed and logical argument showing:

(1) the alleged CUE of fact or law. --CFR 38 4.1 and CFR 38 3.103 were violated--

(2) the factual or legal reasons for the alleged CUE of fact or law. --- There was no exam given which this reduction from 40% to 20% was based on. 38 CFR 4.1 requires an exam for the application of the ratings guide. --

38 CFR 3.103 was violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced from 40% to 20%. If pre-reduction due process requirements are not followed, reduction is invalid.--

(3) why the decision would have been "manifestly different but for the alleged error." ---The veteran would have been rated at 40% plus dependency pay since September 1990 instead of 20% with no dependency pay.-

The veteran was medically discharged from the Navy in August 1990 at 40% due to 2 witnessed major seizures within a year. VA began his original rating based on his Navy evaluation of 40%. He was assigned this rating for two months beginning in September 1990 following his military discharge date of August 1990. The original rating decision then reduced him to 20% beginning November 1990, based on the sole evidence of Service Treatment Records (STRs) and no new seizure activity noted in the records since the date of discharge. Of course, any reasonable person would realize that no new seizures would be noted in the STRs after the date of discharge, because things are not added to those records once a person is discharged & leaves the military. No exam by VA was given or offered to determine if in fact there had been any new seizure activity. There was a clear violation of the laws in effect at that time, specifically 38 CFR 4.1 which requires an exam for the application of the ratings schedule and 38 CFR 3.103 in which his Due Process rights were violated because he was not given advance notice and opportunity for a hearing when his compensation was to be reduced from 40% to 20%.

I have included the pertinent passages of the law that govern these irrefutable errors that were made in the original rating decision of 1990.

1. There was no exam given which this reduction was based on. 38 CFR 4.1 requires an exam for the application of the ratings guide.

38 CFR 4.1 ( in effect since 1976) is the most important part here.

§ 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

[41 FR 11292, Mar. 18, 1976]

Furthermore, for an "unprotected rating" which is a rating in effect for fewer than 5 years to be reduced, it must be:

— Based on review of entire history

— Has to be "actual change" in disability

— Must show "improvement in the veteran’s ability to function under the ordinary conditions of life and work"

— Based on thorough examination (38 CFR 4.1)

　

"Unprotected ratings" are Veteran Disability Compensation ratings that are less than 100% ratings, or that have been in effect for less than 5 years.

Special rules apply to the reduction of an unprotected rating.

The VA must provide notice of its intent to reduce the benefit to the Veteran, schedule a pre-reduction exam, pre-reduction hearing, and give the Veteran an opportunity to submit evidence and argument against the proposed reduction.

When the VA decides to reduce a benefit, any reduction that it proposes has to be based on a review of the entire history of the veteran's disability.

There has to be an actual change in the veteran's disability - not just a temporary retreat of symptoms. The improvement in the disability must be reflected in the veteran's ability to function under the ordinary conditions of life and work.

Finally, the exam on which the proposed reduction is based must be as thorough as the exam on which the initial disability rating was based.

　

2. 38 CFR 3.103 was violated because he was not given advance notice and opportunity for a hearing and opportunity for legal representation when his compensation was to be reduced from 40% to 20%. If Due Process requirements are not followed, reduction is invalid. None of the exceptions listed apply to this case.

38 CFR § 3.103 Procedural due process and appellate rights

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice -- (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

(Authority: 38 U.S.C. 501(a))

　

　

　

　

And finally, I would like to explain why the decision would have been "manifestly different but for the alleged errors". Without the errors as explained above, the original rating decision would have remained at 40% as the Navy medically retired the veteran at. Without these errors, the arbitrary reduction from 40% to 20% never would have taken place

[john999]

The VA may say that failure to provide an exam comes under "duty to assist" which can't be a CUE. The VA sent my original rating decision to the wrong address and it was returned to sender. My lawyer is trying to decide if I have a case. How could I appeal if I never got my appeal rights? Should I have known because I got money in the bank from the VA that my claim was decided? What appears obvious to us is not obvious to the VA or to judges sitting at the BVA or CAVC. I would try it anyway. Get a lawyer to look it over if the VA denies your CUE. I had one of the best VA lawyer in the country on my CUE and I lost, so beware. Also these CUE's can take almost a decade if you go all the way. Both my lawyer and I thought we had an air tight due process violation, but it did not win as a CUE. Don't give up just be prepared.

John

[Philip Rogers]

Personally, I believe it is a CUE, because the VA failed to follow proper procedure(s).

jmo

pr

[Berta]

Navy Wife, can you scan and attach here ( cover name, address, C file number first)

the actual 1990 decision you are CUEing? (If you already did, sorry I asked and I can look for it)

Also:

"Also, do I need to argue that subsequent 3 decisions were made invalid by 1st decision, as they were all seeking a rating of 40%?"

Were any of those decisions ever appealed? Are any of those decisions in the appeals process now?

You make a good point as to arguing those other decisions......but I would think , if you obtain a successful award for the 1990 CUE , the award and retro would cover all subsequent denials for the same disability.


This link from hadit makes an important point in the second paragraph :

In part:

"5.9.7 The Process by Which Running Awards of Compensation Are Reduced or Terminated

Special due process protections apply in cases where the VA proposes to reduce or terminate running awards of disability compensation. First, a claimant facing such a reduction or termination must be given prior notice of the proposed adverse action.466 The notice must be specific enough to satisfy the regular notice of decision requirements.467 Moreover, the claimant must then be given at least sixty days after the notice within which to "submit evidence for the purpose of showing that the adverse action should not be taken."468 If the claimant does not submit evidence within the sixty-day period, a final rating decision will be prepared.469 The veteran is notified of the final rating decision and the award of benefits will be reduced or discontinued.470 A new 60-day period begins from the date of the final decision. The reduction or severance goes into effect on the last day of the month on which the new 60-day period expires.471

There are a few important exceptions to the prereduction or predetermination notice requirement.472 According to a precedent opinion of the VA general counsel, the VA is not obligated to comply with the advance notice requirements set out at 38 C.F.R. § 3.105(e) when proposing to reduce a compensation award if the actual amount of compensation paid is not reduced as a result of the proposed rating reduction.473 In addition, if the claimant provides oral or written statements or information that are factual, and contain unambiguous information about income, net worth, dependency, or marital status with knowledge or notice that the information would be used to calculate benefits, no prior notice is required.474 Instead, the VA must only give contemporaneous notice of the reduction or termination.475 Also, contemporaneous, rather than prior, notice of an adverse decision is permitted if evidence "reasonably indicates that a claimant is deceased."476"

http://www.hadit.com/vaclaimslibrary/law/ratingreduction.htm

It seems important but I dont understand what the heck it means as to the "exceptions".

Anyone here understand it?

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Just to add for potential Cuerinos.......

It is the :"Watergate" question.....

What did the VA know and when did they know it......I assume not really an issue in above case, but I try to remind that CUEs are based on established medical evidence at time of the alleged CUE.

The decision being CUED , particularly the older decisions might contain for example :

a rating percentage and than then a NSC designation.

For example...I have a posthumous decision that says 80% NSC for cerebral vascular stroke dated 1998.DC Codes all wrong.

The VA granted " as if SC" for the stroke in 2012 and awarded a CUE claim I had filed in 2004 on the 1998 rating.

SC under 1151 at 100%.( 3 CUEs were awarded) The medical evidence had been established with VA prior to my husband's death.

If VA had diagnosed and rating my husbands IHD properly, in 1988 the rating would have been'

SC at 30%

VA awarded my CUE on that ( I always forget I actually won 4 CUES in my last decision)

The complete lack of rating was the CUE basis. The medical evidence had been established prior to my husbamnd's death. (This evidence was covered up by the VA as I proved for FTCA)

In 2012 the VA awarded his AO IHD at 30% back to 1988.

(although the IHD was immediate cause of his death, due to my FTCA issues, VA would not stage a higher rating up to his death. They could not do that because he received no VA diagnosis nor VA care for the IHD in his lifetime.

My point here is (because many overlook this point with CUE claims ),is that the medical evidence at time of alleged CUE must be established....with the VA.....in the med recs or possibly in other documents in VA's possession..

As buggered up as my husband;s VA care was ,

for the IHD and the CVA, I was able to prove beyond a doubt that his "established medical evidence " with the VA at time of my 3- in =one CUE of 2004 and a subsequent CUE I filed in 2005 I think, supported the manifested altered outcome of their erroneous decisions.

Hope that doesn't confuse anyone.

.....