Cue Question

[PintoRacer]

Does the VA apply the same stringent definition to itself when using CUE to reduce an award?

Specifically the requirement to use the records that existed at the time of the CUE or can they use new evidence from a recent exam under 3.105(e).

I understand a new exam can be used to sever service connection under 3.105(d) if a doctor certifies the initial diagnosis was not correct.

Any info helps.

Thanks

[FormerMember]

If the perceived CUE is a "re-examination" of the facts as they were known at the time of the 2009 decision VA feels is in error, then they must refute it with a new diagnosis that clearly proves the old one was erroneous. However, it must still get over the "manifestly changed the outcome" rule. VA's DRO CUE of your claim does not rise to that error level. They simply try to insinuate the wrong diagnostic code was employed. Try this on for size. http://asknod.wordpress.com/2014/05/02/cue-the-quintessential-elements/

Now, look at your circumstances. VA is saying it made an error in how it rated you and seeks to "fix it" suddenly when you ask for an increase and a DRO review. This is the thing most Vets fear. If I ask for more will I get the bitchslap? VA has to prove a large legal quandary. They will lose but it will require a trip to the CAVC if you have the mettle and the stamina. The reason is simple. Merely saying the wrong diagnostic code was employed is not grounds for CUE. That is a subjective assessment after the fact and can never rise to the level of CUE. How the facts were interpreted cannot be revisited unless they were clearly and unmistakably erroneously interpreted. For VA to CUE themselves, they must pass the stringent test applied to you should you try to file for it. Here, they insist they used the wrong DC and confused the meaning and location of 'humerus'. Tough luck. The presumption of validity applies in all things VA. It's assumed the C&P rater knew whereof s/he spoke. Monday morning quarterbacking is all well and fine, but if the facts, as they were known, were used to arrive at a legitimate decision, trying to show CUE requires an error to be so obvious even a ten-year-old could see it. No one, especially a DRO, can come back and say they committed CUE unless it's blatant and reasonable minds can agree that an error occurred. Trying to rehash the finding based on semantics or diagnostic codes have never won. You simply cannot go back and argue that the old rater's decision was in error. It had three signatures so three raters thought it was right.

What you have is simply one rater's decision, signed off by his mentor RVSR and the Assistant Manager of the RO, that the decision was correct and binding. VA has made a "finding" that your elbow is rated X% disabled and your shoulder as well. To overturn the finding requires them to prove beyond the shadow of a doubt that the original rater had the IQ of a goat and that the facts, as they were known at the time, were substantially different from what the records stated. They cannot meet that high standard and they will fail. They assume you will do as most other Vets and acquiesce to the error by not appealing it. 90% of us do not. No appeal equals a correct CUE decision. Historically, VA loses these "reverse CUE" situations as much as, or more frequently, as we do. It is not easy to overturn a finding for VA or a Vet. That is why so few CUE claims succeed. VA is just as maladroit at it as we are. Here's one that contains the seeds of your win. Although it is a single judge decision by Judge Mary Schoelen, the beauty of it is that it cites all the prior panel decisions needed to cite for your win. It does mirror your situation closely, too. http://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/

And Berta- please add the Moody Blues to your list of Moog synthesizer artists. They wrote the book on it.

A

You are cleared in hot. Guns are free.

Edited July 31, 2014 by asknod

[Philip Rogers]

Ah, the Moody Blues, I remember the days . . . . one of the best bands ever!!!

pr

[Berta]

You bet..will do ASKNOD!

[PintoRacer]

I got great news today. They are withdrawing the proposed reduction in my benefits. I am glad I studied the elements required for a CUE determination listed in M21 and CAVC decisions. :) Best of luck to the rest of you guys. I am officially out of the backlog / appeals process with an equitable award of 70% .

[Berta]

Yippee...how did you do it?

Did VA call a CUE on itself?

Did you submit an IMO? or does it get back to this July post you made:

"Does the VA apply the same stringent definition to itself when using CUE to reduce an award?

Specifically the requirement to use the records that existed at the time of the CUE or can they use new evidence from a recent exam under 3.105(e).

I understand a new exam can be used to sever service connection under 3.105(d) if a doctor certifies the initial diagnosis was not correct.

Any info helps."

Often the VA will call CUE on itself in order to propose a reduction.

This is GREAT news however and you were very proactive!

[carlie]

I got great news today. They are withdrawing the proposed reduction in my benefits. I am glad I studied the elements required for a CUE determination listed in M21 and CAVC decisions. :) Best of luck to the rest of you guys. I am officially out of the backlog / appeals process with an equitable award of 70% .

Great news.

Please update your SC evaluation in your profile.

Thanks