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]

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

[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.