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Cues Vs Nods


pacmanx1
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Question

This is my opinion

OK, the crazy one here, I notice a lot of veterans filing claims of CUE after they get a rating decision or they are told to file a CUE claim after they get a rating decision that they disagree with. A veteran can file a claim of CUE at any time but due to the fact that the VA recently made a decision, Filing a claim of CUE will just frustrate the system and frustrate the veteran. Keep in mind the definition of what a CUE means. According to the CFR a CUE is defined as: §20.1401 Rule 1401.

(a) Issue. Unless otherwise specified, the term “issue” in this subpart means a matter upon which the Board made a final decision (other than a decision under this subpart). As used in the preceding sentence, a “final decision” is one which was appealable under Chapter 72 of title 38, United States Code, or which would have been so appealable if such provision had been in effect at the time of the decision.

(b) Party. As used in this subpart, the term “party” means any party to the proceeding before the Board that resulted in the final Board decision which is the subject of a motion under this subpart, but does not include officials authorized to file administrative appeals pursuant to §19.51 of this title.

3.160 Status of claims.

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

(a) Informal claim. See §3.155.

(b) Original claim. An initial formal application on a form prescribed by the Secretary. (See §§3.151, 3.152).

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

With all of this said, I know that there have been some veterans/widows who have been successful in asking VA to CUE themselves but this is rare and CUE claims can take years to be resolved. In most cases after a decision is made, if the veteran disagrees with it, all she/he has to do is file a request for reconsideration or a NOD. Keep in mind that filing a request for reconsideration at the RO level does not stop the NOD time frame. If the veteran disagrees with the request for reconsideration she/he will still have to file a NOD. Also keep in mind that filing a request for reconsideration at the RO lever is Reopening the claim.

Yes, I fully understand that some of the claims fall in this CUE category but if a veteran has just received a Rating Decision the best action at this time is to file a NOD (Notice of Disagreement) and go from there. By filling a NOD for an EED or for a higher rating percentage should result in the same outcome as filing a CUE except the strict standards that a CUE claim must meet. Keep in mind that the evidence of record and the rating criteria at the time of the original rating must prove that the veteran should have been awarded the EED or the higher rating percentage. I hope this help. The bottom lines are review the evidence and then review them again and remember you have a year to respond to the VA decisions.

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I agree, Pete with one caveat:

You see, filing a CUE does not preclude filing a NOD!

As Berta suggests, you can file a CUE, and still file a timely filed NOD as long as you do so within a year.

The VA wants us to make mistakes and create many traps for us to fall into, such as not filing a NOD timely, or failing to file a CUE on an erroneous decision. This way, we can actually do both.

I agree not to file a CUE when a NOD will do as it raises the standard of review, HOWEVER, I recognize that some times doing just that can shorten the time frame.

Berta suggests asking the VA to Cue themselves when the VA decision is erroneous. I say, go ahead and file Berta's suggested CUE, but make sure you also file the NOD. That way, the Veteran can have the best of both worlds. The Cue, if it works, could result in quick benefits and not require a lengthy appeal. However, the NOD will ensure the Veteran preserves his appeal rights if he is unable to meet the CUE standard of review, but still may be eligible for the Benefit of the doubt.

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Stop wait, I am not attacking Berta's suggestion. I myself have told veterans to file both a CUE and An NOD simultaneously to cover both the old and the new rating decision but an NOD is really what is needed to be filed and that "should" be the better "fastest" way for a veteran to get the outcome that he or she is looking for in a decision.

P.S. Also a CUE claim can be filed at any time but it is only ripe after the one year mark of that rating decision. So the veteran best bet is to file the NOD. The veteran can still gather evidence on the CUE if he or she feels that they have one instead of informing VA of the possibility of a CUE, many times the reason and basis for a decision will have clues that will help a veteran win an EED or a higher rating percentage

Edited by pete992
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I have been a VA claimant for 2 decades and have found legal errors in just about every initial decision I ever got.

They even made a legal error in my daughter's very first contact with VA, as a veteran.

I pulled something on them in my last CUE claim, pending, I filed the NOD on time but also requested a NOD extension for "good cause" per the NOD extension regulations, because I stated, a claimant cannot prepare a proper and adequate NOD with a standing legal error in the decision they are filing a disagreement on.

I call that a PAKITU tactic...Put A knot in Their Underwear.... Ha Ha.

Seriously, we ARE prevented from filing a valid NOD if there is a serious detrimental legal error in the decision, that could certainly cause problems down the road.

I shape my claims now eventually for the BVA, not for the my RO ,because they have consistently proven to me, they cannot read.

I did add to the NOD extension request that, if they properly address the CUE issue, there would be no need for a decision on the NOD extension request.

This is a pending CUE yourself VA request on one sentence in the award letter I got in Jan 2012, that only took three weeks to resolve the initial CUE yourself request I faxed to them in December 2011.

The medical evidence in VA's possession since 1992 showed that my husband's 1151 stroke was 100% P & T for 22 months, until he died.

They only paid me 6 months at 100%. The regs state, VA comp must be paid at 100% for 6 months,following a catastrophic stroke and then the residuals must be rated.

The "residuals" he had were 100% P & T ,by medical evidence,and also in a letter from a former VA Secretary, dated 1993,from August 1882 until he died Fall 1994.. They definitely owe me some more cash.

One main reason for the 100% that continued until his death is that this went from a NSC stroke to a Section 1151 "as if SC:" stroke ,twenty years after he had the stroke, by virtue of the initial resolved CUE by the Nehmer people in 2011.

8 years at my VARO...Buffalo NY, but only 3 weeks at Phila VARO.

The same CUES I filed in 2003 (stroke) and in 2004 1151 IHD.

I have not filed for 1151 for the IHD yet.

They awarded for AO IHD.

Plenty is wrong with that picture.

Edited by Berta
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I guess I'll chime in here as well and give

my two cents. NOD and CUES. Both have their time and place. Although with an NOD might...will prolong your claim progress there is a strategic advantage here., the benefit of doubt. However on a CUE there has to be a legal error and it must have profoundly changed the outcome of your case and be of detriment to your claim. Not to mention the fact that you are now on an unequal battlefield with an agency that has an armament of "making their mark" attorneys just ready to pounce on any flaw in your claim since you no longer have the benefit of doubt. Not saying that you shouldn't pursue it, just stating that your 'i' and 't' better be dotted and crossed because it's going to get down and dirty real fast. JMHO.

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Berta Posted:

Seriously, we ARE prevented from filing a valid NOD if there is a serious detrimental legal error in the decision, that could certainly cause problems down the road.

end of Berta quote.

Exactly. Surely the VA will "look the other way" on this also, because they want us to contine making the mistake of filing the wrong remedy: CUE or NOD. Many times these differences are subtle and Veteran/laypersons are not in a position to know with certainty which remedy to use. There have been multiple times where Veterans were smacked by the courts for not filing a timely NOD, and, I a sure there are also times where the government prevailed because the Veteran should have filed a CUE instead of a NOD.

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Perhaps OUR Nods should be worded similar to this:

"I disagree with the RO decision dated 02/03/14 and request a Decision Officer Review on said decision, on all issues. However, there is at least one CLEAR Unmistakable Error that needs to be addressed first, since a NOD on a RO decision in error gives an obscure result which could result in minimized beneftis to the Veteran, or in delaying benefits due to the Veteran." (Then state the CUE).

Signed,

IMA Veteran, 12/02/14 This is likely why VA wants us to use THEIR form, because it does not contain anything like this.

Edited by broncovet
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