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]

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

[entropent]

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.

[Pete53]

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.

[Berta]

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.

[lamontino]

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.

[lamontino]

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....