How Do You Instigate A Cue Claim &

[Guest Jim S.]

Well, I knew it would take awhile, but I didn't plain on denials across the board. They didn't even give me the C&P I had asked for and my VA Rep had asked for with assurances that they would. Of course that was a Verble assurrance that they would conduct one to get a deffenative answer on my problem

What I need to know now, is how do I present my CUE claim that I have been working on, it seems that this is the only way I am going to prevail. Who do I send a CUE claim to and/or where tp send it to?

I want to know, since the last time I sent a CUE claim to the VARO, they took as a claim to reopen and didn't seem to know what a CUR claim was.

I am at the stage that my claim to reopen was denied, due to no new and probative evidence to use to make a case for.

My CUE claim is pretty spacific and I believe it would go further than my claim to reopen did.

I just want to make sure that the CUE claim gets to the cottect place, I can't trust the VARO to forward it to the correct place.

Jim S.

[Guest jstacy]

Hi Jim, Hows the fishing?

I filed a CUE based on new and material evidence.

I filed the Cue as the following.

The RO failed to reopen the claims for Hypertension and headaches. He misapplied the regulations 38 CFR title 38 - 3.307.

You have to show that the VA committed error by not properly applying the regulations in deciding the claim. The Error must be clear and unmistakable. For Example. Your claim if viewed by someone else would render a different decision.

I agree with 1968ArmyVV. DO you mind giving us some detail in order to assist you durther.

[Berta]

"I am at the stage that my claim to reopen was denied, due to no new and probative evidence to use to make a case for"

Jim-when claims get to this point it is usually time to consider a strong independent medical opinion as that seems to be the only way that VA will recognize new evidence -in many cases.

A CUE should be filed at either the VARO who made the decision that contained CUE or if it was a BVA decision, the BVA should be sent the CUE claim.

I have a CUE that got a ridiculous denial.I asked them for a reconsideration and they immediately started working on it again-

The denial seemed to hinge on their statement that the veteran did not have a Section 1151 claim pending in his lifetime-therefore the SMC at 100% under Section 1151 -which they erroneously said he was not entitled to, although he had 100% SC also for PTSD-was a clear and unmistakable error.

I sent their 1997 decision stating he was not entitled to SMC consideration,

his 100% PTSD award and his rating decision of 100% under Sec 1151 for independent disabilities.

I reminded them his Sec 1151 claim was right in the c file last time I checked and I re-opened it word for word when he died.They awarded that claim in 1998.

I also had documents VA sent to CHAMPVA due to a VA error that also confirmed the veteran was 100%P & T direct SC and 100% under Section 1151.

I also sent them the regs on SMC entitlement, and a general counsel opinion that states Sec 1151 veterans are eligible for SMC.

100% SC plus 100% Sec 1151 equals SMC.

Dont be discouraged because they often need it spelled out very clearly.

1.Final decision (It pays to save everything from VA)

2.Actual regs they broke (I sent them the actual regs from 38 CFR and also the section of M21-1 that tells VA how to apply these regs)

3. it must have a manifested different outcome-

in my case a retro at least at the SMC "S" level which I already told them I would NOD as the veteran was

severely disabled at well over 100% due to their negligence.(per FTCA documents and Sec 1151 award I received)

Jim- I let a CUE go years ago at the BVA-and then Regional COunsel awarded it anyhow as counsel found the CUE had been correct and like I dope I didnt appeal it.

It resulted in quite a bit of retro.

The check came a week before the award letter and I didnt know what it was for.Regional Counsel (the VA itself) had called the same CUE on itself that I had filed and did not appeal.

Another CUE I had at the BVA many years ago-I never appealed and now the VARO is attempting to re-open it themselves.

They filed a Motion for Reconsideration at the BVA in August on it.

Apparently something in my newer claim triggered them to do that.I should oull that out and see why they filed the Motion.

Cues can be won.

Medical diagnosis and differences of medical opinion dont qualify for CUE and neither does Duty to Assist but if the VA made a legal error, to the claimant's detriment,in a final decision, a CUE can resolve this with retro.

I have another CUE which I cannot imagine how they will handle.

This is retro SMC on heart disease which they never considered the veteran for.

The veteran's med recs do not show any heart disease diagnosis.

I proved to the VA my husband had heart disease ,undiagnosed and untreated, evident by his VA medical records-over a 6 year period, which contributed to his death.(Death Cert and autopsy)

This was also verified by the VA Central office medical team as contributing to his death.

They have to consider this disability under rating schedule for 60% to 100% for SMC.

I dont think they ever had a CUE like that. I cannot imagine how they will resolve it.

The VA must consider every disability a veteran has and rate it as SC or as NSC.

In 1995 (I had to consider Bell V Derwinski as to what evidence was actually in their possession to rate the heart disease)and then confirmed in 1997, the VA had evidence in their possession that this was a ratable disability that the veteran had.

They never rated it. That is a CUE.

In my opinion a CUE has to be simplified more than a direct SC claim.

It has to be narrowed down to the decision being CUEd, the regs they misapplied, and the result ,if granted, has to involve more retro.

Edited October 21, 2006 by Berta

[Guest jstacy]

Do not attack the New and Material Evidence, You must attack how the original decision or the request to reopen was handled. For Example if it is clear cut that the problem existed in service and you have medical evidence stating current disability is 50 percent or more likelyrelated, Then you attack the decision becasue they ignored the medical evidence. The VA does this all the time hoping the Vet will just go away. It makes them look good to save the money. It is designed to be that way.

[Berta]

That is a very good point John-

Sure- if the vet has the evidence and they did not consider it and still claim the evidence is not new and material, that could be challenged.

This fairly recent BVA remand proves your point:

http://www.va.gov/vetapp06/files2/0604479.txt

The veteran had been denied for pes planus (flat feet) as due to his service.The SMRs showed no mention of pes planus at all.

"The evidence submitted since the prior final

decision in April 1948 is new and material. In a letter

received in July 2003, the veteran's private physician, Dr.

A. B. M., stated that wearing tight combat boots during

service could have aggravated the veteran's pes planus."

The BVA made no decision on service connection but determined:

"ORDER

The application to reopen a claim of entitlement to service

connection for pes planus is granted"

http://www.va.gov/vetapp06/files3/0610580.txt

"New and material evidence has been presented concerning

the claim for service connection for a back disorder, and it

is reopened. "

"Evidence obtained in connection with the attempt to reopen

the February 2002 claim includes, two February 2003 lay-

statements from members of the veteran's unit during the Gulf

War, and a February 2003 medical opinion from a private

physician. Both lay statements indicate that the veteran

injured her back during the Gulf War while carrying an oxygen

tank to the operating room. The private medical opinion

indicates that the veteran's current back problems regarding

her lumbar discs are directly related to the initial injury

sustained while on active duty as described by the veteran.

These documents were not considered previously and are so

significant that they must be reviewed in connection with the

current claim. The veteran has therefore presented new and

material evidence to reopen the claim for service connection

for a back disorder. Accordingly, the petition to reopen is

granted and consideration may be given to the entire evidence

of record without regard to any prior denials"

In this case the veteran clearly had sent the VARO the 2 lay statements and also the 2003 Independent medical opinion.

The VARO obviously did not consider this as new evidence and denied the claim.

When the VA says that new and material evidence has not been presented it sure pays to see if they actually received and considered what was sent to them as new evidence.

I certainly raised hell when my evidence was not considered.

I have noticed that the VA will state "letters received" from the claimant in some decisions- and the "letters" actually contain new evidence which the VA failed to read.

This has happened to me so many times over the years that it sure pays to draw them out as to why the new evidence was not considered.

This is another reason why a vet needs a POA. When the vet submits evidence the POA is usually supposed to send the VA a copy of the evidence with a 21-4138 form that shows that the POA wants the evidence to be considered in support of the claim.

My former POA- I found out- NEVER sent them anything at all like this in the past 3 years.

Looking over my POA files -2 past other vet reps always sent this form in with evidence and it seemed the 4138 form might have triggered the VA to consider the evidence as more than just a "letter".

My new POA has sent them 3 of these 4138 (In Support of Claim) statements in the last 2 months.

I realise now that this is why my initial IMO might have been ignored.When I got a DRO review the other vet rep-at the regional office-didn;t even know I had their POA.

None of my claims are even in my POA file. For some reason, this former vet rep sure messed me up. For years I thought he was doing the normal SOP work as a vet rep but he didnt do a thing.I certainly complained to his boss about this.

The other good thing is that when you send them evidence, with a supporting statement from your POA, there is certainly of record that they got the evidence- better than just having a certificate of mailing it.

Edited October 21, 2006 by Berta

[Berta]

Terry-I think of the Bell ruling like Watergate- what did they know and when did they know it?

This recent CUE shows what I mean:

http://www.va.gov/vetapp06/files2/0603319.txt

"In conclusion, the February 26, 1970, rating decision which

reduced the veteran's disability evaluation from 100 percent

to 70 percent for schizophrenic reaction contains CUE and is

hereby reversed. A 100 percent rating is reinstated as of

May 1, 1970 and remains in effect until December 1, 1971."

The veteran does receive 100% SC for schizophrenia but he knew the reduction in 1970

was wrong.

This was the CUE:

"this is a case in which the decision was fatally

flawed at the time it was made as the veteran had not been

afforded his right to have 60 days following notice of a

proposed reduction to present argument and evidence to show

that the monetary allowance should be continued at the

present level. "

"'clear and unmistakable error,' there

must have been an error in the prior

adjudication of the claim. Either the

correct facts, as they were known at the

time, were not before the adjudicator or

the statutory or regulatory provisions

extant at the time were incorrectly

applied. The claimant, in short, must

assert more than a disagreement as to how

the facts were weighed or evaluated."

The VA knew the veteran had schizophrenia but the veteran questioned the degree of disability from the 1970 proposed reduction.

Clearly this veteran was not afforded his legal rights by the VA's failure to allow him 60 days to present argument.

I think this is a good example of a CUE. It only awarded I think- 5 months of the difference from 70% to 100% but nevertheless--this vet was right and would not allow the VA to keep his money.

Also the HBP CUE claim posted here oday is an excellent example of CUE with much retro.

But regarding Bell- I know what you mean.

In my CUE I figured the VA could say- well- the veteran was documented as having been malpracticed on and deceased due to VA care by VACO report of July 24,1997.

However the accrued award letter on PTSD retro had been sent to the spouse the week before.

Therefore the VARO had no knowledge of the entitlement to SMC as the VACO report was dated a week later-showing malpractice and section 1151 disabilities confirmed.

But I asked them to obtain -even via subpeona if needed- records in VA's possession in May 1995, that revealed medical malpractice.

These were records from Counsel to a VAMC and then back again.And Counsel had called me only 3 months after filing my FTCA claim to say they needed to begin negotiations as the VA medical report had confirmed my charges of malpractice.

Counsel and the VAMC Chief of med staff who prepared the report suddenly retired and the "report" was suddenly "non existent" per the VA.

But I reminded VA in my CUE claim that the missing report was in my c file when I got a copy of it all.It was prepared by VA computer on an internal VA form,so I sure didnt make it all up.

Under Bell V Derwinski-the VA had Constructive Notice that Rod had been malpracticed on with resulting death- within months of my FTCA claim.

This way if they said "when did we know"- July 24, 1997-malpractice

but "what did we know" when the accrued award was sent -July 17,1997-

no Malpractice--yet clearly the medical evidence they constructively had shows they knew of the malpractice in 1995 and when they generated the accrued award and the CUE was lack of proper SMC entitlement as accrued benefit.

It was pretty frustrating to have counsel call me with the results of this medical review and want to begin negotiations and then suddenly that all went under the rug and the medical review report disappeared.

I had to fight them for over two more years on this claim.

What a shock when I found the missing report in my c file.

My present claims just went to VA counsel for a day or two- maybe this is why-to verify this report had been ordered and received.

I even called VA counsel at his home after he retired and ran into the Doctor who prepared it and they were both astonished that my claim was still denied.

They insisted VA had the report and when I got my c file --- 6 years after this long battle---they were right.

Funny how it is only the most important evidence that mysteriously "disappears".

Edited October 21, 2006 by Berta

[free_spirit_etc]

When I have been researching CUE claims - I have also noticed that the BVA sometimes RECONSIDERS the claim -- grants the benefits -- then dismisses the CUE (because the benefits requested have ALREADY been granted) -- then POOF - there is NO CUE.

I guess it is a semi- win-win --as the vet gets what they were seeking and the BVA gets to not have a CUE.

Free