Possible Cue

[Fat]

If you are appealing a denied contention.

You submit a DBQ as evidence in the matter.

They subsequently deny the appeal; however they fail to mention the submitted DBQ as evidence.

Is this a possible CUE.

What form do you submit a CUE on?

[Berta]

I know of no specific form.

I just always write them a letter ...this is from one of my CUEs:

"This is a claim of CUE, (clear and unmistakable error),under provisions of 38 USC 5109 (a). I believe the VA clearly erred in a final decision dated July 1997 and also in a decision dated January, 1998 , also which I did not appeal.

The VA failed to consider the veteran properly for SMC as an accrued benefit incurred during his lifetime, evident by medical evidence in his files, yet not awarded to me as accrued benefit in addition to the 2 years of 100% SC awarded me posthumously after he died."

(I also stated his Section 1151 stroke rating was wrong, the diagnostic codes were wrong, the SMC issue was never considered properly under the SMC mandated Statute, ) and then I filed another CUE like this on his IHD a few months later.

I quoted the 3 prongs of Cue in the claim and stated how each piece of my evidence satisfield the three prongs and that all of the evidence had been established and in VA's possession at time of the decision I filed CUE on (and I enclosed a copy of the decision containing the 4 CUEs.)

I also stated how their CUE had manifested an altered outcome.

"They subsequently deny the appeal; however they fail to mention the submitted DBQ as evidence.



Is this a possible CUE."

Yes. If they necver mentioned the DBQ in the decision narrative or the evidence list.And you have proof that they received it.

It is a violation of 38 CFR 4.6 . This is the reg I used for my 2011 CUE and then for the award letter a few weeks later that resolved the CUE issues ,in part , with retro for 6 or 7 months but did not consider the evidence that warranted more retro cash. I thought for 16 months but now it seems they snookered me out of 22 months, 100% P & T, plus SMC, dependent allowance for one wife and one child.

The EED they gave me was the same month that even more prime facie medical evidence was established at the VA.

I assume the DBQ supported your claim and this is not a question of needing a proven service nexus.

Edited February 14, 2015 by Berta

[Navy04]

Berta is right on this issue bud, but in my case I have had multiple denied conditions where the VA lost or did not use the DBQ. Good luck

[Fat]

Thanks.............