Cues Vs Nods

[pacmanx1]

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.

[Berta]

I only had one main claim and that was awarded at the BVA, my CUes were resolved at the RO level.

I think I posted the Nehmer decision, which included the SMC CUE award, here in the CUE forum...in early 2012.

If not this might be a better way for you to understand that CUE.

This is email to and from Rick Spataro, NVLSP.....Nehmer ( my CUE was resiolved by the Phila VARO Nehmer division)

"Hi Berta,

Good luck with the 1151 CUE claim. It’s in interesting tactic and probably not a bad idea if you’ve had success with it before and you’re still within the appellate period to file an NOD in case it isn’t successful.

Great picture. Enjoy the Zeppelin CDs, too. They’ve always been one of my favorite bands. Their box set is still in my regular music rotation.

Rick"

Richard V. Spataro

Managing Attorney

Nehmer Lawsuit Division

National Veterans Legal Services Program

1600 K Street, NW, Suite 500

Washington, DC 20006-2833

Direct: (202) 621-5675

Office: (202) 265-8305, ext. 149

Fax: (202) 328-0063

Email: rick_spataro@nvlsp.org

---------------------------------------------------------------------------------------------------------

Thanks Rick,

I felt I needed to clarify---------

I am asking the VARO to CUE themselves on one part of the Nehmer decision- which I feel my evidence that VA also had, in the veteran's lifetime,- will show they made a legal error in their January 17th, 2012 decision.

I still have time to file a NOD but this tactical maneuver (asking them to CUE a decision during the appellate timeframe ) has worked for me before 3 times since 1996.

This CUE request I am making solely regards my husband's 1151 CVA.

It was not part of the Nehmer IHD matter but part of the Nehmer decision and I am VERY grateful Nehmer people in Philadelphia awarded the CUE I had filed on SMC in 2004 regarding my husband's 1151 CVA.

So I didn't mean to suggest at all that my claim was handled wrong, regarding the actual Nehmer issue .

Luckily your Nehmer training letter

hopefully taught these raters handling the Nehmer claims More than they ever dreamed they would learn, and they can apply all that to future claims of any nature..

They did a wonderful job on Nehmer claims!!!!! I saw very few problems at hadit regarding their decisions.

( more personal chit chat deleted)

I finally had time to enjoy the Led Zeppelin CDs I got for Christmas 2011 !!!!! or maybe that was in 2010...yow

I will be contacting the Texas Veterans Commission to kick around some serious ideas which I feel could help reduce the backlog.

I don't suppose a case load of "Reading for Dummies" sent to every RO will help. Ha Ha.....

Thanks again for your many replies to my questions regarding the Nehmer Training Letter.

When my 2 current issues are resolved, I will be sure to send NVLSP a donation.

Berta Simmons NY" email to NVLSP

Re: to Ms. Monyei re : received AO IHD Award!!!

XXXXXXX to agentorangeshow details

© 2014 AOL Inc. All Rights Reserved

Email

in Part to

"Dear Ms. Monyei,

I am very happy with my Nehmer decision that I received Monday,January 23,2012.

The VA upon my request to CUE their initial improper decision of Dec 6th 2012, did do that,and then resolved my claim.

I will make a donation to NVLSP."

and

"Part of the award resolved 3 CUE issues I had pending since June 2004 at the Buffalo RO level.I disagree with the Section 1151 ,38 USC CVA ratings they gave but can deal with that.Also I was incorrectly thinking of the current IHD ratings but Rick Spataro advised me that the ratings for IHD depended on the Schedule of Ratings in Rod's lifetime. They awarded 30% for IHD from Oct 25th ,1988 to Oct 14, 1994, date of death. So that seems right as to the rating.

I am VERY grateful that the Philadelphia VARO properly acknowledged my husband's original Section 1151 claim, filed in March 1994.For 17 years VA said it never had been filed.

That acknowledgment meant more to me than any retro ever could. Our credibility seemed tarnished all these years but the Nehmer Division in Philadelphia rectified that.He truly now has Peace with Honor.

Thank you so much for any EED input.

I am searching for old VA historic rate charts because VA erred in 2 audits on my claims in the past and had to send me about 40 thousand dollars more so I tell all vets and widows to take the time to see if their retro awards cover dependency amounts correctly as well as proper historic comp/DICrates."

------------------------------------------------------------------------------------------------------------------------------------------

This was sent in response to her email:

"In a message dated 11/17/2011 5:03:30 P.M. Eastern Standard Time, agentorange@nvlsp.org writes:

Ms. Simmons,

I thank you for being so understanding and working with us through this process. I sincerely hope that you hear something from the VA soon.

Sincerely,

Allison Monyei

Staff Attorney*

National Veterans Legal Services Program

*Licensed in Maryland - representation in the District of Columbia limited to matters and proceedings before federal courts and agencies"

Allison Monyei can be contacted via the main NVLSP number in Rick's email above.

I have no problem with her giving you a confirmation of what I have stated here at hadit as to my SMC CUE claim and my pending CUE on the nehmer decion, within the appellate period as long as they keep my personal contact info private.

Edited December 4, 2014 by Berta

[Berta]

That was in email and I have many more emails to and from NVLSP...it might be better explained in them , will take me lots of time to go through them)or feel free to call either Rick Spataro or attoreey Ms. Monyei (she was the NVLSP lawyer who actually handled my Nehmer claim)and maybe they can better explain the SMC CUE they resolved within my long Nehmer decision.

Tell them you have my permission, Berta M. Simmons, NY, to discuss that award with them.

I had to get them to CUEs themselves on the Dec 6th 2011 decision , and then when they did it right, the CUE regarding the SMC , in a 1998 decision was resolved...in 3 weeks.

3 CUES in the 1998 decision for the 1151 SMC CVA claim and then the 2004 CUE on IHD in the same decision was also resolved.4 CUES resolved.

When you call NVLSP tell them I am still unsure about attending their Christmas Party in Washington But I sure appreciate their lovely invitation!

Edited December 4, 2014 by Berta

[RUREADY]

So if the decision was decided at RO than there is no case of a cue claim being awarded

at BVA level other words a reconsideration was order or a cue. If you go to BVA and search

cue claims there is not many in many years at BVA and with the term of Cue your self there is

not one listed. Maybe me taking a lot of meds too. Bertha thanks for what you do and the time

you put in here. You have help me with just your reading & experience with claims

[john999]

The CUE claim is an attempt to have a claim that has become final overturned based on a legal error and/or some flaw in due process. Wait until you get to the CAVC with your CUE and they kill with the death of a thousand cuts. These impartial judges seem to agree with every objection to having my low ball decision revisited. You have to show the error would have the effect of changing the outcome of the decision. You have to show that "reasonable minds" agree that the mistake is a CUE. You must show that the error is "undebatable". All these things are difficult to say the least. I had the best VA legal eagle in the business and my claim was clobbered because it happened before the VA had to demonstrate that all the evidence in a claim was considered. Before 1990 or 1992 it was just assumed that the VA looked at every piece of evidence you sent them and carefully considered it. What a joke!!! My claim was decided in 1973 when you got no review of the evidence just a denial or approval. I did not know for years that my private doctor's report was most decidedly not considered. The BVA even admitted it, and still the VA at the CAVC was able to invoke the law before 1992 to say there was no error. Also, the VA said it was not "undebatable" that the possible omission of my doctor's report would have materially changed the outcome of the rating. That is hard to fight against those odds. The CUE error is not open to debate. It almost has to be a clerical error. I have heard it said that the CUE law is a Chimera and it is to an extent. It is a mythical creature that disappears before your eyes when you try to invoke it. This CUE of mine after 8 years is at federal court where I will probably lose again. The final words I got from the CAVC is that I should have appealed the rating in 1973. Yeah, I should have if they had not sent my appeal notice to the wrong address, but they can probably get out of that as well, but the vet can't get that "assumption of regularity" like the VA does when you mail them evidence and it gets lost ten time.

t

[Berta]

John, Nothing is impossible.....and this could be resolved by the Fec Ct.

But CUEs are difficult to win.

Maybe this will help someone out there...

You are right RUREADY ,that we,unfortunately, have no idea how many CUE claims are awarded at the Regional Level.

I sure wish we could read them.

Also 1151 awards made , like mine, at the RO level are hidden from the public so know one really knows how many vets the VA harms or kills.I have been FOIAing them a lot on that point.

In my BVA decision for my AO DMII award (2009) (This was before I was awarded AO IHD death under Nehmer in 2011)

The BVA refers to the 'go CUE yourself' request I made, this way, for my VARO to CUE themselves on their initial decision, which they did, but that only brought me a double DRO review...and my evidence was still ignored.

"The claimant perfected her appeal with regard to service

connection for the cause of death by filing correspondence

accepted in lieu of a VA Form 9, Appeal to Board of Veterans'

Appeals, in January 2006. Although this was outside the one

year period from the February 2004 denial, and beyond the 60

day period from issuance of a statement of the case (SOC) in

September 2005, the claimant submitted or caused to be

created additional evidence requiring the issuance of a

supplemental statement of the case (SSOC) in December 2005;

therefore, the time for perfection of the appeal was

extended. 38 C.F.R. § 20.302(b)(2) (2008)."

The "submitted ot caused to be created" part involved the 2005 CUE I filed (by fax and by IRIS...I was really ticked off and filed it the day I got the decision)

and that reversed the initial 2005 decision.

After they got my FAX and email they quickly did 'resolve' that CUE.

I immediately got a double DR0 review.(but with same DRO....legal error there as well.)

YET the VARO still completely ignored my evidence and that is when I realized my vet rep was working against me.He said he personally handed my IM0s to the DRO at the second DRO review. The SSOC says that never occurred.

No sense in asking them to again CUE themselves....I couldnt wait, at that point, to get to the BVA.

I would have handled this situation much differently these days.

Still, the BVA stated:

"Such favorable competent opinion evidence is sufficient to at

least place the evidence in relative equipoise on the

question of whether the Veteran had diabetes, and whether the

diabetes contributed substantially or materially to the

cardiovascular disorders that more immediately caused the

Veteran's death. "

"ORDER

Service connection for the cause of the Veteran's death is

granted."

http://www.va.gov/vetapp09/Files2/0916095.txt

I hope this proves that I did have a decision reversed with the Go CUE Yourself tactic in 2005. as well as in 2011.I sure intend to succeed on the pending claim using this tactic.

But I wish the BVA had stated it all as a CUE I filed against them during the appeal period but they didnt.

And it didnt matter anyhow. This case does prove as well that, if a claimant has the Evidence they need, they will eventually succeed, because ,even if they are dealing with illiterate clowns at the RO level,and even with a having a dope as their POA,

the BVA can and will definitely read their evidence.

Edited December 5, 2014 by Berta

[RUREADY]

Upon discovering that entitlement to SMC had been
addressed in a July 1997 RO decision, the claimant instead
initiated a claim of clear and unmistakable error (CUE) with
that decision. As the appeal was not perfected, the issue is
not before the Board.

So you file cue on SMC in 2006 on a claim from a final 1997 decision and did win it?

2006 decision you introduce new evidence that I am thinking your appeals rights

had expired and VA accepted it was the evidence already in records and VA didn't

read it or what or how did you get them to accept this without starting over? You wont give

up will you.lol I like that