Would This Be Considered A Cue?

[K9MAL]

I followed my VSO's advice in 2002 and didn't file a NOD, due to not wanting the VA to lower my ratings, as he suggested would happen. Fast forward to today and the 2 issues that were denied then were approved this last go around, 12 years later.

If both issues, tinnitus and left knee, are considered to be a CUE then it would bump my old rating of 60% to 70% and the backpay would be greater than $40k. So, I'm very interested in finding out if I should file for a CUE or if the issue is dead in the water.

This is the original decision letter for both issues.

[john999]

New evidence you submit that is not SMR's usually puts the kibosh on CUE's. The VA uses the date of the new evidence for the ED, but it is worth a try. If you don't file for the CUE you will never know if you have any grounds.

[K9MAL]

New evidence you submit that is not SMR's usually puts the kibosh on CUE's. The VA uses the date of the new evidence for the ED, but it is worth a try. If you don't file for the CUE you will never know if you have any grounds.

I guess I'm unclear as to what the VA recognizes as "evidence." The newest C&P doctor referenced my SMR's for the left knee so there's no new evidence there in my mind. I did receive a new audiologist exam and she determined that I do in fact have tinnitus, which got squashed the first go around. However, it existed then and is documented as well.

Is this a NOD situation or time for a CUE? That's the big question...

I think this may be attorney time for me... I'll try calling Bergmann & Moore today to see what they say unless someone has a better recommendation.

Thank you everyone for their help and advice.

Edited November 3, 2014 by K9MAL

[broncovet]

Getting an attorney is a good idea. Remember, tho, what you are disputing and what you are not disputing.

If you got the benefits you want, but not the effective date you want, the course of action is to file a NOD on the recent decison that granted benefits you want, but an effective date you do not want.

You create additional hoops to jump over when ever you file a CUE..cue is the last resort, only if a regular NOD wont work. Remember, there is no benefit of the doubt with CUE, so why give that up if you dont have to, and increase the standard of review. (Cue has a standard of review, "undebatable", while NOD has "benefit of the doubt goes to Veteran". You can file a Cue if you like, but it will make it harder for you, than a simple NOD on the effective date for the most recent decision.

You can cite the rules for effective dates, which is the date you applied or facts found (when the doctor says you were disabled). If you applied in 2002, UNLESS your doc says you were not disabled until 2014, you can argue you are disputing the effective date. The 2002 decision acknowledges they had your claim in 2002, so that should be your effective date, giving the Veteran the benefit of the doubt.

If that fails, you can still Cue, as there is no time limit on CUE, but the effective date of your new decision will become final unless you appeal it.

[jbasser]

You are going to have to determine the following issues to file a cue.

A cue is a hard nut to crack. You must be able to convince reasonable minds that the VA screwed up. That error has to be a legal error. (That means a Misapplication of the rating schedule) THe error must have caused you harm. (cost you money).

If you can prove this then you have a cue. Differences of opinion and the way evidence is looked at is not considered a cue.

J

[K9MAL]

Broncovet - Thank you for that response. I think that outlines everything I need to know in a very cogent manner.

As it stands now I'll file the NOD and see where it goes from there. If that fails I'll move forward with an attorney and the CUE process at that time.

[john999]

When VA says "reasonable minds" they mean the VA. I have a CUE that is over 8 years old. I am now in federal court. CUE law is so full of booby traps for average vet it is a chimera. There are a bunch of concepts such as "undebatable", "Reasonable Minds", that create roadblocks it takes a power ranger to get over. I was taken to school on this CUE as was my lawyer, and I had one of the best at my hearing at CAVC. AskNod says your CUE must be visible from the moon to win. I won one of them where the mistake was as clear as an unmuddied lake.

John