Jump to content
VA Disability Claims Community Forums - HadIt.com Veterans
  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery instead of ‘I have a question.
       
    2. Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title.
      I don’t read all posts every login and will gravitate towards those I have more info on.
       
    3. Use paragraphs instead of one massive, rambling introduction or story.
       
      Again – You want to make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.
     
    Leading too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading


  • 2023-foeum-banner.jpg

     

     

     

     

     

     

     

  • red-rectangle-thin-bar.png

     

    Ask Your VA Claims QuestionThe LatestVeterans Crisis Line


     

     

     


    red-rectangle-thin-bar.png

  • Get Your HadIt.com Merch! Check them out here2022-11-16_06-22-29.png

  • Who's Online   0 Members, 0 Anonymous, 9 Guests (See full list)

    • There are no registered users currently online
  • 0

How Do You Instigate A Cue Claim &


Guest Jim S.

Question

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. :blink:

Link to comment
Share on other sites

  • Answers 29
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

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.

Link to comment
Share on other sites

"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 by Berta (see edit history)
Link to comment
Share on other sites

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.

Link to comment
Share on other sites

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 by Berta (see edit history)
Link to comment
Share on other sites

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 by Berta (see edit history)
Link to comment
Share on other sites

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

Link to comment
Share on other sites

The PDA is a Department of the Army agency that has final approval authority for disability cases adjudicated by the PEB. Meaning, Now the BVA and COVA are ruling in favor of vets whom or had rating at the exiting processing done by PEB etc.....

Departing from generally accepted medical principles to adjudicate a case would, for instance, constitute error on the part of the PEB

The Army rates an unfitting condition for present level of severity whereas the VA rates for future progression, that is the prognosis of the illness or injury, and for adverse impact on employability within the civilian job sector.

This creates a very difficult standard of proof, especially for reserve component members who must establish a nexus between their unfitting condition and military service.

In reference to CUE Claim, a vet can estblish a cue claim base on presumption of soundness because it had failed to apply 38 C.F.R. § 3.303(:rolleyes:, which governs determinations of service connection relating to chronic diseases, and 38 C.F.R. § 3.304(:D, which provides for the presumption that a claimant was sound before entering the service.

VA is revising its interpretation of section 1111 to provide that,if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service.The VA has to repeat HAS to prove both not just one of the above things.See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004).

CUE is not only a failure to apply the law but must also be accompanied by a condition that was ratable based on the evidence in the file at the time the law was not applied

Take for instance you get out the military and they say. "Hey you got spondlysis of the L5 area which existed prior to service. so they let you out the military. Than you find out you had points of tenderness of the L2-L5 which the PEB or MEB failure to address in a "attacking CUE with adding that the PEB,MEB, And now, THe RO failed to applied base of presumation of soundness and failed to adjudicate the other compounds of the back.

If the L2, L3, L4 were diagnosed in service is the VA obligated to adjudicate it if the medical reports did not associate any chronic symptoms nor stated that such symptoms were shown to be chronic in service/

There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

"Is due to" (100% sure)

"More likely than not" (greater than 50%)

"At least as likely as not" (equal to or greater than 50%)

"Not at least as likely as not" (less than 50%)

"Is not due to" (0%)

Failure to follow this procol could lead to a CUE but that depends on your claim. 20. A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her. Duty to Assist” except in the most extraordinary cases where evidence available at the time of the decision to let me out of the service were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”

Veterans claims assistance act of 200 (VCAA) applies in this case clearly (38 U.S.C.A 5100 et seq. West 2002. It is written, VCAA applies to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA’s duty to assist a claimant in developing facts pertinent to his claim, and expanded VA’s duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. VA promulgated regulations that implement these statutory changes. See 38 C.F.R. 3.102, 3.156(a), 30159, 3.326(a), (2005). The case added the requirement that VA must tell the veteran how they will rate the disability per the Schedule of Ratings and also how they will determine the earliest effective date if the claim succeeds. From day one, VA hasn’t done this in any of the letters addressed to me (Dingess-Hartman)

Did Va to just that in your case? Or did you they just let you know half? If half, than you can or should applied that Va error in the law per statutue of its own very law or regulation. Its tricky on how to connect it but I could explain if you would like to know.This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision.

I know alot of peoples feel also that they cant get an congenital abnormalties rated but Congenital or developmental defects may not be service-connected because they are not considered "injuries" under VA

law and regulations. 38 C.F.R. § 3.303© (2002). However,congenital or development defects may be service-connectable where a superimposed injury occurs during, or as a result of, active service. VAOGCPREC 82-90. So dont fall for the bull that it isn't.

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. B)

Link to comment
Share on other sites

Good subject!

Ok how would one Apply the CUE If the VARO that made the decision did not use the SMRs that were in the veterans file and that was one of the reasons given for the deniel of the original Claim - No medical records from time claimed by the Veteran. Then Years later he finds them. and of course he never appealed because of the lack of SMR's at the time of the decision.

Macool

Link to comment
Share on other sites

  • HadIt.com Elder

File the CUE at the VARO where the error occurred. Did the VA make an attempt to get the SMR's? If the SMR's existed the VA should have moved heaven and earth to get them since they are stored at a federal facility. What was the reason why the VA did not get the records? Is there any proof in your C-File that the VA actually requested your SMR's?

Link to comment
Share on other sites

File the CUE at the VARO where the error occurred. Did the VA make an attempt to get the SMR's? If the SMR's existed the VA should have moved heaven and earth to get them since they are stored at a federal facility. What was the reason why the VA did not get the records? Is there any proof in your C-File that the VA actually requested your SMR's?

I am not sure about if there is proof the original VARO attemted to get them. I will have to go veiw it and find out - that will make it easyer if there is no proof . - obviously they were there they just did not see them or should I say did not use them in there decision.

Link to comment
Share on other sites

  • HadIt.com Elder

Did the VA come out and say that you had no SMR's or that the SMR's were silent about your claimed condition? If they had the records and said they did not have them then your CUE is pretty clear. If they had them and did not refer to them it is more murky. If they said they could not get them and you got them later I think you are good to go on the CUE as well. I filed a CUE and I still don't entirely understand all the situations that make a CUE.

Link to comment
Share on other sites

Did the VA come out and say that you had no SMR's or that the SMR's were silent about your claimed condition? If they had the records and said they did not have them then your CUE is pretty clear. If they had them and did not refer to them it is more murky. If they said they could not get them and you got them later I think you are good to go on the CUE as well. I filed a CUE and I still don't entirely understand all the situations that make a CUE.

Yes they came out ad said No SMR's from time claimed- They could not find- get them or see them -whatever- I got them 18 months ago 12 years later after the original file date.

Macool

Link to comment
Share on other sites

A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her. Duty to Assist” except in the most extraordinary cases where evidence available at the time of the decision to let you out of the service were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist” you in the development of the injuries/claims worsen or was found in service.

The Law reads as such " A decision by the Board is subject to revision on The grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised".See 38 C.F.R. 3.102, 3.156(a), 30159, 3.326(a), (2005).

Remember tho that The Army rates an unfitting condition for present level of severity whereas the VA rates for future progression, that is the prognosis of the illness or injury, and for adverse impact on employability within the civilian job sector.This creates a very difficult standard of proof, especially for reserve component members who must establish a nexus between their unfitting condition and military service.

c. Prejudicial Error

Having found a failure to fulfill VA's section 5103(a) notice obligations, the Court must take into account the rule of prejudicial error. Error is prejudicial when it affects a substantial right that the statutory or regulatory provision involved was designed to protect so that the error affects "the essential fairness" of the adjudication. Mayfield, 19 Vet.App. at 115. Once you demonstrates a VCAA notice error, you will has the burden of going forward with a plausible showing of how the essential fairness of the adjudication was affected by the error. If you makes such a showing, the burden shifts to the Secretary to demonstrate that the error was clearly nonprejudicial, i.e., that the error did not affect the essential fairness of the adjudication.

The Law also reads, © Service department records.

Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.

Go here for further development of your CUE claim:

http://www.warms.vba.va.gov/M21_1MR.html

Good subject!

Ok how would one Apply the CUE If the VARO that made the decision did not use the SMRs that were in the veterans file and that was one of the reasons given for the deniel of the original Claim - No medical records from time claimed by the Veteran. Then Years later he finds them. and of course he never appealed because of the lack of SMR's at the time of the decision.

Macool

Link to comment
Share on other sites

you guys are making this way too complicated. there is a cue if the evidence which was available in the file at the time of the original decision clearly showed that a grant was warranted and a denial was issued.

if the smr's were not of record at the time, there is no cue. there is certainly no such animal as a cue "based on new and material evidence." nor does VCAA notification have anything to do with cue. nor does an insufficient exam report warrant a finding of cue. ONLY the evidence that was of record at the time the claim was rated is reviewed in determining if there was a cue.

there is, however, a remedy. when original smr's are not available at the time of a rating, and they are later made available FROM NPRC then the ro must readjudicate the claim and grant benefits, if warranted, back to date of original claim.

if the vet had the records in his possession and submits them later, no cue, and no backdating of effective dates.

and if you have moved since the original claim, file your cue with your current regional office of jurisdiction, not the office that made the mistake.

Link to comment
Share on other sites

  • HadIt.com Elder

For all the talk of CUE I don't see a whole lot of Vets getting it. On Oct 18th I am going to try cause in 1996 I was awarded 100% P&T for Panic Disorder and I was diagnosed with agoraphobia and not considered for housebound A&A. Its all in my records including VA Shrinks and C&P's and IMO's all saying I was agoraphobic.

At times I think I have a good case and sometimes I have major doubts. I would never even applied for Housebound last December if not for John999 <s> nagged </s> persuaded me into it. Now its his turn.

I am firmly convinced that the VA is failing Veterans by hiding benefits that are due and their mindset is to deny and delay to save money that is owed.

Entropent is giving some really good advice and I fear that the frustration that many of us feel obscures the path we need to take to win.

If I lose in Waco next week I plan to Appeal to BVA and forget it. At least I tried this time.

Link to comment
Share on other sites

Entropent -THANK YOU-

I have posted considerable info on CUEs here for a long time- available under the search-

You summed it all up so well I hope your post shows up first in all the discussion here on CUE in the search thing.

I won a CUE granted by the RC a few years ago and also got the VA to CUE itself in 2005 over a decision.

I presently have 2 CUES they are working on now.

You presented in my opinion a very good assessment of what a CUE is and what one isnt.

A BVA decision being cued must be cued to the BVA-

RO decision-being cued - the CUE claim must be filed with the RO.

The Bell decision- this should be read carefully by anyone filing a CUE claim.

I posted some CUE winners here over the years -they do get awarded but not very often.

I think a CUE claim should be stated only within 2 or 3 paragraphs and then with the Legal-not medical- evidence attached to the claim.

Copy of the final unappealed decision.

Copy of the regs in place at time of alledged CUE.

Statement as to why the CUE occurred (reference to the DC etc-)

Manifested altered outcome.

I took them how much money I expected on my CUE retro and what level the veteran should be rated at. I told them keep the "S" award and instead use 38 USC 1114 to determine the proper level under SMC.

My husband was 100% SC for PTSD and also over 100% under 1151.

They said he was not eligible for SMC consideration under any circumstance.

This is against established VA case law and I sent 5 pieces of VA case law to prove it.

I sent many pieces of evidence from the VA itself to prove them wrong.

I also included a page from the VBM showing that a widow is eligible for any accrued benefits whatsoever that the deceased veteran's record showed they should have been eligible for.

THANK YOU- you said it all as to CUE.

Link to comment
Share on other sites

And Berta you are right as well, what I I was trying to tell is from what I was told a lawyer. He told me its best to file a CUe and a claim for new and material evidence because if one fails the other would apply because of the new and material evidence that wasnt of the record at the time the denial was in place. ANd it does goes back until the orginal date. DOnt know for sure But I think this lawyer knew what he was talking about. But hey whom im I.........LOL........Im working hard on mines just to get connected. BUt I got some really good good news today. So im quite excited :). I will not share this news until I get a final notation of the decision. BUt I can say this, MY case is being look at by the chief BVA law judge.

I guess my case is different from some of you all. BUt if I got any info I can share, I will. BUt im extremely happy for the phone call I had yesturday evening (from a phone call I called last week). I think it would help alot of Vets out there if this goes through....

Entropent -THANK YOU-

I have posted considerable info on CUEs here for a long time- available under the search-

You summed it all up so well I hope your post shows up first in all the discussion here on CUE in the search thing.

I won a CUE granted by the RC a few years ago and also got the VA to CUE itself in 2005 over a decision.

I presently have 2 CUES they are working on now.

You presented in my opinion a very good assessment of what a CUE is and what one isnt.

A BVA decision being cued must be cued to the BVA-

RO decision-being cued - the CUE claim must be filed with the RO.

The Bell decision- this should be read carefully by anyone filing a CUE claim.

I posted some CUE winners here over the years -they do get awarded but not very often.

I think a CUE claim should be stated only within 2 or 3 paragraphs and then with the Legal-not medical- evidence attached to the claim.

Copy of the final unappealed decision.

Copy of the regs in place at time of alledged CUE.

Statement as to why the CUE occurred (reference to the DC etc-)

Manifested altered outcome.

I took them how much money I expected on my CUE retro and what level the veteran should be rated at. I told them keep the "S" award and instead use 38 USC 1114 to determine the proper level under SMC.

My husband was 100% SC for PTSD and also over 100% under 1151.

They said he was not eligible for SMC consideration under any circumstance.

This is against established VA case law and I sent 5 pieces of VA case law to prove it.

I sent many pieces of evidence from the VA itself to prove them wrong.

I also included a page from the VBM showing that a widow is eligible for any accrued benefits whatsoever that the deceased veteran's record showed they should have been eligible for.

THANK YOU- you said it all as to CUE.

Link to comment
Share on other sites

I mean today. Not yesturday

And Berta you are right as well, what I I was trying to tell is from what I was told a lawyer. He told me its best to file a CUe and a claim for new and material evidence because if one fails the other would apply because of the new and material evidence that wasnt of the record at the time the denial was in place. ANd it does goes back until the orginal date. DOnt know for sure But I think this lawyer knew what he was talking about. But hey whom im I.........LOL........Im working hard on mines just to get connected. BUt I got some really good good news today. So im quite excited :). I will not share this news until I get a final notation of the decision. BUt I can say this, MY case is being look at by the chief BVA law judge.

I guess my case is different from some of you all. BUt if I got any info I can share, I will. BUt im extremely happy for the phone call I had today evening (from a phone call I called last week). I think it would help alot of Vets out there if this goes through....

Link to comment
Share on other sites

This is the first I have heard or read about a "CUE". Totally new to me as is this whole procedure of reopening an old claim. After reading these posts in this particular thread I believe that I have a "CUE" here.

Berta, do you recall that I stated my original case was denied due to death certificate reading "Arterialsclerotic Heart Disease" (no autopsy done) and they said not connected to his SC of Lymphoma/Lymphosarcoma/Hodgkins disease? I also stated (relating to possible CUE here) that the medical records they HAD in their possesion showed he complained of chest pains a few months prior to death and ALSO the VA had sent him to Baylor for sleep lab eval which was returned to VA reading "abnormal PAC's and PVC's (heart rhythms etc) were observed on many occasions and we recommend this patient receive a cardiac evaluation".... the report was withheld from US and the VA did nothing about follow up on this Baylor report which is dated March 3, 1990. He died August 8. 1990 of apparent heart attack/failure at home.

Does this constitute a basis for CUE?

I have contacted Dr. Bash and am waiting to hear from him. Thank you all for your assistance. I am truly wanting to go at this in a way to get retro pay; it has been a long long road already and its not over yet I realize.

Thanks,

Judy

Link to comment
Share on other sites

  • HadIt.com Elder

Pete

I did file a CUE claim. Tell me again how to file for housebound? I think I am going to file for it. My one problem, of course, is that I am TDIU and not 100% schedular. I worry about another C&P exam from a VA shrink. If has often gone bad for me. I filed my CUE all the way back to the day I was first rated. I was homeless, jobless and clueless and I got 10% rating. Like you I doubt I have much chance but I threw the CUE against the wall to see if it will stick. So far I have been denied for bogus reasons.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...

Important Information

{terms] and Guidelines