New And Material Evidence And Cue

[Guest jstacy]

I am posting this information as a guide for the above.

http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_secb.doc

[Guest jstacy]

Josephine, Actually back to Huntington may be a good thing, The office is not as slammed as the other ones and they seem to be more Veteran Friendly. My Ky claim was transferred thre and within a matter of weeks I had a Favorable Decision.

[Josephine]

John,

I am pleased that you liked them and they were nice to you.

Thanks,

Josephine

Edited November 1, 2006 by Josephine

[Vike17]

Jstacy,

"Any record in the governments posession bears the responsibility of the VA to obtain as per duty to assist. If you reopened after 2000 and the VCAA. You may consider filing a Cue claim based on the information you have just provided"

Failure in the "Duty to Assist" does not constitute a CUE.

Vike 17

[Berta]

Terry- I hope Vike answers this-

meantime here are some CUEs that were successful at the Court:

Sorakubo V. Principi---

BVA failure to apply appropriate rating reduction criteria

Joyce V. Nickolson,Sondel V West, Akins V Derwinski-

failure of VA to apply presumption of aggravation regulations

Look V Derwinski- VA improperly applied Sec 1151 criteria and prejudiced the veteran's substantive rights.

Myler V Derwinski- one of my favorites and I posted this here before---

failure of VA to assign proper percentage rating-decided 1991- retro back to 1953 !!!

I have posted others CUEs too that succeeded at the CAVC.

I think my own CUES would succeed at the court:

#1 Veteran was 100% SC for PTSD, and also well over 100% due to Sec 1151.

VA regs and OG Pres Op regarding a Section 1151 vet says the vet was eligible for SMC.

VA regs state a veteran will be considered for SMC when evidence warrants it.

VA said no way- under no circumstances (final decisions)

100% SC plus 100% 1151 equals SMC. Manifested outcome: retro accrued award.

(this is with a rater presently-VA denied because they said vet never filed a Sec 1151 claim his lifetime.

I replied that his Sec 1151 which I re-opened word for word after his death is right in the c file. I saw it in there. My FTCA and my Section 1151 were based,word for word, on the veteran's Section 1151.The 800# confirmed that both of his claims were at rating board the AM of his death)

# 2 Veteran was never rated for significant heart disease from 1988 CAD to 1994 death.

VACO said the veteran, who had never been diagnosed or treated for heart disease, had evidence in VA med recs of 1988 heart attack at the VA and further disabling affects of heart disease in VA med recs up to his death.Undiagnosed heart disease contributed to his strokes and to his death.

Undiagnosed heart disease was one of "multiple" issues of malpractice causing his death due to VA care.(Sec 1151 award and FTCA)

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

The VA must rate the veteran's heart disease , diagnosed 3 years after his death by VA.

Manifestly different outcome- higher level of SMC as accrued.The veteran died of heart attack.

My long point here is these CUES I have at the VA involve legal error in final decisions.

The medical evidence often sets the stage for CUEs but it is the minute a rater picks up a pen or gets on a PC and starts to ostensibly use VA case law and regs to determine ratings, DCs, lack of ratings, improper rating criteria applications, failure to consider OG Pres Ops, etc- that the error becomes clear and unmistakable.

There are more successful CUEs I posted at hadit-I will try to find them.

New and material evidence does not matter to a CUE claim.

And as Vike said- neither the DTA or the VCAA matters to a CUE claim.

Solely legal error ,within a final VA decision, causing more retro to the vet if successful.

If no retro is to be due the vet-the vet does not have a valid CUE.

NVLSP in the VBM always has much info on these types of claims.

Edited November 1, 2006 by Berta

[Brandy]

Terry- I hope Vike answers this-

meantime here are some CUEs that were successful at the Court:

Sorakubo V. Principi---

BVA failure to apply appropriate rating reduction criteria

Joyce V. Nickolson,Sondel V West, Akins V Derwinski-

failure of VA to apply presumption of aggravation regulations

Look V Derwinski- VA improperly applied Sec 1151 criteria and prejudiced the veteran's substantive rights.

Myler V Derwinski- one of my favorites and I posted this here before---

failure of VA to assign proper percentage rating-decided 1991- retro back to 1953 !!!

I have posted others CUEs too that succeeded at the CAVC.

I think my own CUES would succeed at the court:

#1 Veteran was 100% SC for PTSD, and also well over 100% due to Sec 1151.

VA regs and OG Pres Op regarding a Section 1151 vet says the vet was eligible for SMC.

VA regs state a veteran will be considered for SMC when evidence warrants it.

VA said no way- under no circumstances (final decisions)

100% SC plus 100% 1151 equals SMC. Manifested outcome: retro accrued award.

(this is with a rater presently-VA denied because they said vet never filed a Sec 1151 claim his lifetime.

I replied that his Sec 1151 which I re-opened word for word after his death is right in the c file. I saw it in there. My FTCA and my Section 1151 were based,word for word, on the veteran's Section 1151.The 800# confirmed that both of his claims were at rating board the AM of his death)

# 2 Veteran was never rated for significant heart disease from 1988 CAD to 1994 death.

VACO said the veteran, who had never been diagnosed or treated for heart disease, had evidence in VA med recs of 1988 heart attack at the VA and further disabling affects of heart disease in VA med recs up to his death.Undiagnosed heart disease contributed to his strokes and to his death.

Undiagnosed heart disease was one of "multiple" issues of malpractice causing his death due to VA care.(Sec 1151 award and FTCA)

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

The VA must rate the veteran's heart disease , diagnosed 3 years after his death by VA.

Manifestly different outcome- higher level of SMC as accrued.The veteran died of heart attack.

My long point here is these CUES I have at the VA involve legal error in final decisions.

The medical evidence often sets the stage for CUEs but it is the minute a rater picks up a pen or gets on a PC and starts to ostensibly use VA case law and regs to determine ratings, DCs, lack of ratings, improper rating criteria applications, failure to consider OG Pres Ops, etc- that the error becomes clear and unmistakable.

There are more successful CUEs I posted at hadit-I will try to find them.

New and material evidence does not matter to a CUE claim.

And as Vike said- neither the DTA or the VCAA matters to a CUE claim.

Solely legal error ,within a final VA decision, causing more retro to the vet if successful.

If no retro is to be due the vet-the vet does not have a valid CUE.

NVLSP in the VBM always has much info on these types of claims.

Berta,

VA regs state the VA will rate (and give diagnostic code ) for all disabilities the veteran has.

Does this include any VA hospital or VA clinic? And is so, what are the regs that state this?

Thanks.

[Berta]

Brandy -if the VARO is aware of a hospital report or any diagnosis from a VA clinic- and the disability is claimed as due to service- the VA should rate the disability and state whether it is NSC or SC in their decision.

Say vet goes to VA Hospital for serious inner ear infection. But the blood work reveals he has diabetes,Type II .

Let's say he has claimed hearing loss due to his service and the SMRs and discharge shows he suffered and was treated for serious ear problems in service.

The VA could possibly find it more than likely that his hearing loss was due to inservice ear problems.

They would rate the hearing loss as SC with a percetage

and if he claimed the diabetes they would rate that as NSC with a percentage.

However, let's say the veteran above served in Vietnam- the VA would have to take into consideration his MOS in combat as well as his documented ear problems.

They would rate the hearing as SC.

Then they would have to rate the diabetes as most likely service connected due to exposure to Agent Orange. He would have a SC DMII rating with a percentage.

I am not sure if this answers your question.

You brought up a very important point.

The VA is supposed to rate and determine as NSC or SC every disability the veteran has.

They don't look for disabilities though.

That is why a veteran should put in their claim,every single disability they have.

Agent Orange vets have had NSC ratings for many years on conditions that then became SC due to the Nehmer decision.

Other vets might have a presumptive chronic condition and be treated for it but never claim it and only claim something else.

I know a WWII vet with multiple SC conditions.

Even though the VA treated him for years no one told him to file any VA claims.

Two years ago he finally got advise as to how to file claims.

PTSD, residuals from 2 PHs, COPD , alcoholism in remission that had caused further disability to liver, and many other conditions, I just hope his vet rep filed for TDIU too.