Motion For Reconsideration And Cue

[Guest jstacy]

QA vet can file to the BVA for a motion of reconsideration and a Cue at the same time.

You may file a motion for reconsideration with BVA at the same time your claim alleging clear and unmistakable error is being processed at the regional office. A motion for reconsideration of a BVA decision may be filed at any time. It must be sent to the following address:

Director, Administrative Service (014)

Board of Veterans’ Appeals

810 Vermont Avenue, NW

Washington, DC 20420

If you send a motion for reconsideration to BVA, it must be in writing and must include the name of the veteran, the name of the claimant if other than the veteran, VA file number, and the date of BVA decision or decisions to be reconsidered. If BVA decision or decisions involved more than one issue on appeal, the specific issue, or issues, to which the motion pertains must be stated. Issues that are not specified will not be considered by BVA in the disposition of your motion. Your motion must state clearly and specifically the alleged obvious error, or errors, of BVA or other appropriate basis for requesting the reconsideration. See 38 CFR 20.1001.

[john999]

I sent a CUE to the VARO because that is where I believe the error happened. What do I need to know? I did write on top of the CUE that this is a CUE and not a request for reconsideration. I expect my CUE to either enter the VARO's long grey line or be quickly bounced back to me as denied. Frankly, it is a shot in the dark but I just could not resist filing it since the injustice is so obvious to me.

[john999]

The way I understood CUE is that you must not have appealed a final decision in order to file CUE. I did not appeal this to the BVA. This is why I am at the VARO.

Terry, are you telling me that if I did not appeal the final decison to the BVA I can not claim a CUE? This is like trying to find a black cat at midnight. I did not even know what the BVA was 35 years ago. I filed a claim within one year of discharge and got 10% rating and that was that. Looking back with the evidence I found in my C-File I think the rating did not reflect the evidence.

[john999]

I am also reading that a final decision at the RO level may be subsumbed by BVA ruling that was made on a reopened claim 20 years later. Then you have to go to the BVA and file your CUE. This seems to be a Mexican hat trick to do a CUE successfully. You have to start somewhere so best to file the claim and await the result. The VBM does say that you can file a CUE at the RO level after a final decision. It depends where the error occurred. If the error occurred at the BVA then that is where you file the CUE. I wish myself and all others filing CUE's good luck because we will need it.

[Angela]

John999,

You are right. Anyone claiming CUE does need luck. also need to be ready to continue to fight even through repeated denials.

As for when you can file a CUE - must be after the decision is final and the time limit for appeals has passed. After that, you can file a CUE at any time, but can only raise the same CUE error once. So once you've started your CUE for a particular error, don't quit appealing denials of that CUE until you win because you can't come back later with a better argument and for the same error.

You also have to file where the error occurred. If the error was at the RO level, then file there. If it was at the BVA, file your CUE with them. And don't ever use the word reconsider in your letters or arguments, unless you're stating that it's NOT a request for reconsideration.

I suggest you read, read, read! Read all the CUE decisions you can find at both the BVA and CAVC as well as decisions relating to your situation. Both have search engines that you can use to find decisions that you can use to help educate your self. As you read you'll come across decisions and rules and regulations that you would never have known about otherwise and than you can use to help your case.

And of course, keep active in HADIT! There are some very smart and savvy elders here that you can count on to help you though.

[john999]

Angela

What do you know about VARO decisions being subsumbed by BVA decisions? The VBM says that some CUE's are thrown out because the BVA decided the issue at a later date in a reopened decision. In other words, you get your final decision at the RO level and ten years later your reopen your claim and it goes to the BVA where it is denied. 10 years later you file a CUE at the RO level and the VA maintains your claim for CUE was subsumbed via the BVA decision ten years ago. Do you understand what I am saying?

My claim is 35 years old and I have reopened it 5 or 6 times over the years. I have been to the BVA a few times asking for increases.

[Angela]

John999,

Very good question. The answer depends on your particular circumstances. I'm not 100% confident of my answer below as I quickly reviewed the Cook decision referenced by Terry. Sometimes I have to read several decisions, (and read them over and over 'cause I'm not a legal guru) before I get the underlying issues. I'm sure Terry will correct me if I'm wrong here.

I believe that once the BVA makes a decision (even on a reopen), that subsumes the original RO decision (addresses the same issues), that you can only CUE the BVA decision.

But, if the BVA decision was on the issue of "was there CUE in the original RO decision" , then you can still CUE the original RO decision IF your argument is different than the one that the BVA already decided.

I think Terry meant to type "Hayre" when referring to decisions you should read. It is mentioned in the Cook decision but I haven't been able to locate the Hayre decision itsself. If you search for "98-1218" on the CAVC's search engine you'll find the Cook decision though.

[john999]

But to go forward I need a decision from the RO saying that my CUE was subsumbed by a BVA decision don't I? I cannot just assume it was subsumbed and file at the BVA. I need to follow the steps. The error was at the RO. I filed CUE at the RO. Now if the RO comes back and says the decision was subsumbed by a BVA decision then I can go forward. The trick is to discover which BVA decision is the one that subsumbed the original claim. I have had many decisions along the way since I have be SC since 1971. The VA is going to have to tell me that my decision/CUE was subsumbed before I can move in any direction.

I just don't get where you cannot file a CUE if you did not file with the BVA when the error occurred at the RO. I thought the definition of what constitutes a CUE is an unappealed final decision that was in error. Correct me if I am reading the VBM wrong. Every decision at the RO and BVA level are individual decisions based on unique circumstances of the veteran. They do not set any presedent.

[john999]

Terry

How do I find this Cook decision you are talking about? If I cannot file a CUE at the RO because I did not appeal to the BVA then I am done. That does not seem to follow from what I read in the VBM. I filed for a discharge review to have my discharge changed to a medical. I am coming at this from both ends. I might be able to get some kind of medical pension which was a lot more than my service connection of $28 dollars a month in 1971. I think it is a long shot but you don't know until you try. All they can do is deny it. I got a honorable discharge but was actually kicked out because of my medical condition. I was sick and the JAG and the Army screwed me when I could not help myself.

[Angela]

John999,

Go to http://webisys.vetapp.gov/isysmenu.html and search for 98-1218. This will get you to the Cook decision.

[john999]

I don't think that Cook states that a final Ro decision that does not go to the BVA cannot be CUE'd. I don't see that in the text of that opinion. It seems that all the decisions in Cook went to the BVA. My original claim was never appealed to the BVA. I got a final decision from the RO and that is what I am saying was in error.

[Berta]

John-I agree with you- if the VARO decision was never appealed -you file the CUE with the VARO-

I had a VARO 1998 decision that my vet rep questioned but never mentioned filing a NOD at the time.

Years later-2004-I realised that the VA had erred and the vet rep knew it- I filed a CUE on that 1998 VARO decision and they certainly are working on it which shows it was filed at the right place.

I had a CUE denial in 1999 also at the BVA which I never pursued to CAVC.

The VA itself in August had filed a Motion at the BVA (where the decision was made) to apparently reconsider the CUE I had filed there and lost. This was for direct SC death.

This supports what you said.

VARO decision gets CUE filed at VARO,BVA decision gets CUE filed at the BVA.

Edited September 23, 2006 by Berta (see edit history)

[john999]

Berta

You know the symptoms the VA gave me 10% for in 1971 are the same symptoms I got 70% for in 2002. Actually, I was much, much worse in 1971 than now as I was really confused and disoriented from RVN experiences. I guess I have been cheated out of so much compensation over the years I don't know what to think. What have I got to lose by filing the CUE? I have been service connected for 35 years. I also filed a claim to have my discharge changed to a medical based on the evidence in my SMR's. Alex said it is a possibility and has been done.