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Cues Vs Nods

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pacmanx1

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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 ask my lawyer about asking

va to cue them self on a decision. He say no such thing and who told me

this. "

Tell him Berta M Simmons , NY (googleable )...told you this and that NVLSP was fully aware of how I did it, during my Nehmer claim process..

He can also call Rick Spataro ,attorney , NVLSP in DC, to verify I am not a nut case.

I will gladly contact him myself, if you tell me who he is. And who you are.

Or ask him to come here and read my posts on that tactic.

Same thing happened with our discussions here on Reconsiderations at the RO level.

There are no regs for that, only at the BVA level. Some time ago a lawyer came here and said there was no such thing as a VARO reconsideration.

But a few vets here have succeeded that way.

A DAV rep left us when he insisted no NOD had to be filed if the vet files a Reconsideration request at the VARO.

Obviously the DAV is well aware of this maneuver and the DAV rep even posted their DAV reconsideration template here.

However, I had to post BVA decisions here to point out the rep was wrong. It was a big disservice to any claimant, who gets their reconsideration denied, but never filed a timely NOD.

If a reconsideration request is not fully awarded during the one year NOD time frame, the vet must file a timely NOD. That situation with this DAV rep turned into a pissing match and he went over to the VBN site.He had reconsideration requests pending for some vets...I hope he told them to watch the NOD clock after he read my posts.

I filed a NOD at the very last minute on my SMC CUE claim. I had filed for a reconsideration because their initial decision was faulty Within the NOD year VA did send me letters indicating they seemed to be working on the CUE claim. However,in their last letter they tried to make up a regulation that did not exist.

Va tried to pull that on me twice. They are hoping we do not access 38 CFR.

When I asked them to produce the regulation , they could't and I knew they hoped my NOD period would run out.

That situation was also within my AO IHD claim. It took a different RO mere weeks to award that CUE. Which, as I said , involved a reconsideration request.

No one knows everything about claims and the way the regs work.We can make them wotk for us as well as for the VA.

However, it concerns me greatly when I see stuff like this. I LOVE lawyers and will be delighted to explain the GCY tactic to him or maybe he would join us here.

Just send him a copy of my response here. and let me know who he is.I will call him up.

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"I ask my lawyer about asking

va to cue them self on a decision. He say no such thing and who told me

this. "

Tell him Berta M Simmons , NY (googleable )...told you this and that NVLSP was fully aware of how I did it, during my Nehmer claim process..

He can also call Rick Spataro ,attorney , NVLSP in DC, to verify I am not a nut case.

I will gladly contact him myself, if you tell me who he is. And who you are.

Or ask him to come here and read my posts on that tactic.

Same thing happened with our discussions here on Reconsiderations at the RO level.

There are no regs for that, only at the BVA level. Some time ago a lawyer came here and said there was no such thing as a VARO reconsideration.

But a few vets here have succeeded that way.

A DAV rep left us when he insisted no NOD had to be filed if the vet files a Reconsideration request at the VARO.

Obviously the DAV is well aware of this maneuver and the DAV rep even posted their DAV reconsideration template here.

However, I had to post BVA decisions here to point out the rep was wrong. It was a big disservice to any claimant, who gets their reconsideration denied, but never filed a timely NOD.

If a reconsideration request is not fully awarded during the one year NOD time frame, the vet must file a timely NOD. That situation with this DAV rep turned into a pissing match and he went over to the VBN site.He had reconsideration requests pending for some vets...I hope he told them to watch the NOD clock after he read my posts.

I filed a NOD at the very last minute on my SMC CUE claim. I had filed for a reconsideration because their initial decision was faulty Within the NOD year VA did send me letters indicating they seemed to be working on the CUE claim. However,in their last letter they tried to make up a regulation that did not exist.

Va tried to pull that on me twice. They are hoping we do not access 38 CFR.

When I asked them to produce the regulation , they could't and I knew they hoped my NOD period would run out.

That situation was also within my AO IHD claim. It took a different RO mere weeks to award that CUE. Which, as I said , involved a reconsideration request.

No one knows everything about claims and the way the regs work.We can make them wotk for us as well as for the VA.

However, it concerns me greatly when I see stuff like this. I LOVE lawyers and will be delighted to explain the GCY tactic to him or maybe he would join us here.

Just send him a copy of my response here. and let me know who he is.I will call him up.

Bertha no disrespect to you or about what you have done I even ask this through my RO

before I got a lawyer and after I had attorney & they explain sent a packet in the mail of a cue claim has to be a final decision

a reconsideration is asking them to look at something they may have miss like IMO,IME, medical records

that was not consider and a lot of vets win with this. I tried it and it didn't work for me what ever works as long

as it a win. When I ask my attorney to ask VA to cue them self and sent a copy of one of your post his reply

to me was" who you want to handle your claim him or myself so that when I made the decision he handle it and

I have to trust him to make the right decision on my claim. As said before no disrespect to you at all what ever works

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If they made a Legal Error, and that Error was detrimental to you, they have committed a CUE in the decision.

Personal example....they made a legal error in a 1998 decision I got.

The VSO I had at the time advised me not to NOD it because as he said "1151s are different then regular claims decision."

It bothered me until 2003.He was wrong. 1151s can be cued.I filed a 3 part CUE in 2003 and another CUE in 2004.

I stated the legal errors in the CUE, with citations.Those errors must be specified.

I gave them a ballpark estimate on the 2003 that they owed me about 60 thousand due to the CUE they made. ( the detriment affect of their CUE)

I won the CUE but then had to ask them to CUE themselves (that claim is pending) on the award letter because they only paid half of what the accrued retro should have been...based on VA case law.

That whole situation grew out of a CUE I filed as a Fax and a complaint with VACO in Mid December 2011.

They had denied my AO IHD death claim (my husband was a Vietnam Combat incountry Veteran) because they said...he did not have evidence of IHD in his SMRs. WTF????? I have been dealing with the AO regs since 1991, long before I had a dog in the fight....

That is NOT how the presumptive Nehmer AO regs read at all.Otherwise probably every incountry Vietnam vet would have been denied.

I got a call from VACO 2 days later, after faxing and Irising the CUE as a complaint and they said what they would do,and I said good because this is what I will do, unless the decision is Cued by the VA.And I told them what I would do next.

( There is a little more to all this than that...however....it doesn't matter..I knew what they had to do.

By December 22,2011 mere weeks after the denial ( Dec 6th I think it was) they cued themselves and the award letter came in early Jan 2012.

The award letter is the same award letter that I had to ask them to Cue themselves again on.That claim is pending.

Edited by Berta
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7. Clear and Unmistakable Error (CUE), Continued

c. Determination Requirements

A CUE determination must be based on the record and the law that existed at the time of the prior decision.

In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim.

Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.

d. Identifying a CUE

A CUE exists if

  • there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made
  • Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule
  • VA overlooked material facts of record, or
  • VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA’s failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

e. Handling Allegations of CUE

Determine the precise nature of the claim when CUE is alleged. Regional offices (ROs) or the Board of Veterans’ Appeals (BVA) will deny claims of CUE if the claimants do not specify the factual or legal errors at issue.

A claimant is not entitled to raise a particular claim of CUE again once there has been a final decision denying that same CUE claim.

If the CUE alleged is different from a CUE issue previously rejected, a rating is needed to determine whether or not a CUE was made on the new issue.

f. Determining a Case of CUE

When determining whether there is a CUE

  • consider the
    • law that existed at the time of the prior decision, and
    • full record that was before the rating activity at the time of the prior decision, and
  • determine whether the error would have by necessity changed the original rating decision.

Note: Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.

g. Handling Decisions Made by RVSRs

Decisions based on the judgment of the RVSR, such as the weight given to the evidence, cannot be reversed on the basis of CUE unless the decision is the result of misapplication of directives, laws, or regulations.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

h. Applying the Benefit-of-the-Doubt Rule

The benefit-of-the doubt rule of 38 U.S.C. 5107(b) is not applicable to a CUE determination since

  • an error either undebatably exists, or
  • there was no error within the meaning of 38 CFR 3.105(a).

Reference: For more information on applying the benefit-of-the-doubt rule, see

i. Revising Prior Decisions

Revise a prior decision to conform to what the decision should have been once a determination is made that there was a CUE in that decision.

j. Approval of Ratings Prepared Under 38 CFR 3.105(a)

All rating decisions prepared by RVSRs under 38 CFR 3.105(a) require the approval of the VSCM or designee at the Coach level or higher. Ratings prepared by DROs would require the approval of the VSCM or Assistant VSCM if they would effect

  • severance of service connection, or
  • a reduction in evaluation of an SC disability(ies).

Exception: Approval of the VSCM or designee is not necessary if the rating is the result of a Board of Veterans’ Appeals or U.S. Court of Appeals for Veterans Claims decision.

Important: A rating decision must be reviewed and approved by the Compensation and Pension (C&P) Service prior to promulgation if the decision

  • initially grants service connection with an effective date retroactive eight or more years, and/or
  • results in a lump-sum payment of $250,000 or more. (See M21-1MR, Part III, Subpart vi, 1.A.5 (TBD) or Fast Letter 07-19.)

Reference: For more information on CUEs involving rating issues, see M21-1MR, Part I, 5.C.13.f.

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this is why you don't want to file a cue claim "its the hardest to win and if you see an error

why try to cue when you can ask for a reconsideration also its not the final decision so where

is cue. I would try to fix it without filing cue, cue is your last fire power you have after a final decision.

Also Bertha do you have a docket # if before BVA where we can look over the cues you won.

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