Cue-What It Is And What It Isn't

[FormerMember]

Over at my site, I get asked about once a day about CUE. Same for SMC. The problem is that Mr. Potato Head is not a tool for teaching CUE.

I assembled this little primer to bring Vets up to speed before they go into the Frequently Asked Questions phase. Hope it helps some of you to save time if you chose this tortured path to justice.

http://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/

A sends

[63SIERRA]

ok so what if the evidence of record at the time the claim was rated, was disregarded or mis interrpreted by the rater/ for example, in the rating decision rater writes chronic spondylolysis WITHOUT spondylolysisthesis/ Medical evidence of record says, patient has spondylolysis with spondylolysisthesis. Rater says nothing abt pain and numbness in legs, Medical evidence in C file says, pain shooting down legs and numbness ? Rater says bone scan shows no fracture present. Medical evidence of record, says, pars fracture at L4?

Rater says no seperation exam is of record. when seperation exam was of record, and on SF 93 or 95, box that says spine, was checked with ongoing back pain. how many times can they shoot your damned horse and get away with it?

Edited May 4, 2014 by 63SIERRA

[john999]

I can tell you from experience that if you fail to appeal even the grossest miscarriage of justice in a VA claim you will probably lose if you file a CUE. The VA completely excluded my detailed doctor's report for my original claim back in 1973. Three lawyers and myself thought this was an error that rose to the level of CUE. The BVA agreed that there was no evidence that the VA ever considered my doctor's report. However, the CAVC destroyed my CUE on every single issue my lawyers brought up via interpretations of my arguments that turned most into "duty to assist", not being undebatable, and the fact that before 1990 the VA did not have to list evidence they used in a rating decision. You have to prove that the evidence the VA screwed up, or excluded would have changed the outcome of a rating decision. This is almost impossible if the VA has one shred of evidence on their side. All evidence must show that you should have gotten SC or a higher rating. In my case the VA actually said that since an unknown ward clerk wrote in my hospital records that I seemed to get on well with other patients in a locked ward that was enough to defeat a doctor's opinion, or was at least enough to make my claim debatable.

Read AskNod's article because when he says the error must be glaring it has to be on fire. For instance, the VA rates you on amputation of the left foot when it was the right foot that was amputated due to mine explosion. That is a CUE I think if you let the claim become final. I could be wrong.

John

[FormerMember]

63 Sierra wants to relitigate the evidence. How the evidence was evaluated can never be the predicate for CUE. 3.105 is rather simplistic. Read 38 CFR 20.1403 which is what you will probably be using when your Motion gets to DC. Start at the beginning and find the loose thread on the sweater. Keep tugging it until the sweater unravels. This is the essence of CUE. It has to be visible from outer space. If you have to take more than ten seconds to explain it, then it probably was open to more than one interpretation. This is where I get into hot water with Vets who feel aggrieved. They firmly believe they got the ugly dog but never objected at the time when it was most advantageous (i.e. appeal). Failing to appeal only preserves your CUE right to file a Motion to Revise but it becomes a very dicey, adversarial endeavour. It wasn't designed to be easy or we'd all be doing it.

Quite often, as most Vets know, error that rises to the level of CUE occurs in VA jurisprudence. Since most of us used VSOs back then, we got sub-par justice. Trying to right the wrong hinges on VA writing down the error where it is quantifiable, easy to discern and easily proven to be incorrect. If you have to go into 15 pages of laws/regulations to make the case, you'll never get over the outcome determinative facet. There are simply too many permutations that can ensue when you keep entering variables. Too many of you build a beautiful legal castle stating error and never point to the one room where the smoke detector is going off. Outcome determinative is an "If..., then... proposition. CUE, by it's very nature , usually is a very simple mistake. The outcome of that error is almost always going to change subsequent history. John999 is correct about VA not listing evidence for denials prior to 90-91. I have one with lots of Sorry. You lose" and no explanation whatsoever as to why. Winning the CUE will require that you have this burning bush.

Always remember that CUE is an error of fact or law, either one or both, that sets the stage. The winners in this game prevail because they compel the judge to see it could only occur in one fashion. Outcome determinative errors are an oxymoron. Mathematically expressed , it's E=AO where E is Error and AO is Altered Outcome. Any decision incorporating error and denying you compensation is going to manifestly change your checking account balance. Proving it is like mating porcupines and requires great dexterity. T-bird and others here have gratefully provided you a wealth of knowledge on how to mate porcupines.

a

[63SIERRA]

not sure of where I got this but

The mere noting of a condition while in service has been held to constitute proof of symptoms. The court phrased it as '' symptoms not treatment are the essence of continuity of a disability. wilson vs derwinski 91.

in other words in my case, I have a shitload of documnetation that points to an inservice injury or aggravation , Va tapdances thru the tulips and comes out on the other side of the meadow, and comes to the great epiphany that I had mere muscle spasms.

They are very skilled at downplaying symptoms, and grasping the LEAST serious diagnosis present, out of several.

Alex Im not sure how this will play out in front of the Wizards but I m not letting them skate. The army doctors try to look at, and as well as the Va as everything needing to be an Acute injury. Nobody ever looked at my whole sequence of symptoms, from the time I was injured until present, as a chronic ongoing injury. thats how they deny. like u have said. divide, deny and conquer.

They will keep harping on the single nurse practicioners preliminary diagnosis of muscle spasms, but will totally disregard the MD diagnosis of spondylolysisthesis with fracture. thats how they roll.

[63SIERRA]

". Start at the beginning and find the loose thread on the sweater. Keep tugging it until the sweater unravels. "

they will be cold and naked by the time im done with them. haha hiding thier pee pee