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.

[lamontino]

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(, 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)

[Done wit this]

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

[john999]

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?

[Done wit this]

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.

[john999]

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.

[Done wit this]

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