Eed/cue Help - CUE Clear and Unmistakable Error - VA Disability Community via Hadit.com Jump to content
VA Disability Community via Hadit.com

Search | Rules | Forums | VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • ask-your-va-disability-claims-question.png

    27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • 01-2024-stay-online-donate-banner.png

  • 0

Eed/cue Help

Rate this question


Army247

Question

6 answers to this question

Recommended Posts

  • 0

We have considerable info here in our CUE forum....

I suggest you go over it all carefully.

Can you scan and attach the 1995 decision as to their Reasons ans Bases and the Evidence list?

And the rating sheet, to see if they in fact gave you a NSC rating for the migraines with a diagnosis code and if that was at 10% or more NSC.

Cue is like the Waterfate question....what did they know and when did they know it?

At time of the 1995 decision, was there a documented diagnosis of migraines and did the evidence list show they obtained your SMRs?

Can you give us the BVA Docket number and Citation number?

Link to comment
Share on other sites

  • 0

August 2014 they were all denied.

After your NOD was denied did you file a form 9.

It's been a while since I filed a NOD, what time frame did VA give you to file a form 9.

It should have been 30 - 90 days or one year of your last decision.

If your decision was/is dated July 30, 2014 you have one year to file a NOD.

You will have to make sure VA review your entire records for migraines and the evidence (military records) to prove your condition. A misdiagnosis is not grounds for a CUE but you probably win an earlier effective date under 38 CFR 3.156c.

§3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501(a))

© Service department records.

(1) 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))

Hopefully others will chime in

Link to comment
Share on other sites

  • 0

Army 247

We have considerable info here in our CUE forum....

I suggest you go over it all carefully.

Can you scan and attach the 1995 decision as to their Reasons ans Bases and the Evidence list?

And the rating sheet, to see if they in fact gave you a NSC rating for the migraines with a diagnosis code and if that was at 10% or more NSC.

Cue is like the Watergate question....what did they know and when did they know it?

At time of the 1995 decision, was there a documented diagnosis of migraines and did the evidence list show they obtained your SMRs?

Can you give us the BVA Docket number and Citation number?


The VCAA notice is odd.They arent supposed to send VCAA notices for CUE claims, but they say it had not been adjudicated so maybe this is why you received it.

However the info from VA is exact as to what you need for the CUE.

Most of my past CUEs were based on errors they made on a rating sheet,in 1998.

One was a "'lack of diagnosis" which sounds like you have basis for regarding the migraines.

The VA had plenty of evidence that my husband had IHD. ( they were trying to cover this up because I had filed FTCA/1151 claims.)

I proved that they had more than enough evidence,documented in his VA med recs, to list as NSC ( at that time) and rate the heart disease (IHD)

I filed that CUE in 2004 and it was awarded in 2012. Never went to the BVA .

Other CUEs I filed since have taken much less time.

My present CUE was filed in Sept 2012 and never acknowledged until Feb 2015.

In February they acknowledged the evidence they had ( since Sept 2012) and also I listed it all on the 5103 waiver.

They refuse to read my evidence so I have taken many additional steps to get it properly considered.

I was told my current CUE was with a 'specialist' many times in 2013-2014.

It was a lie. It didnt even get read until I contacted the Under Secretary in Feb 2015.

My point is, some ROs can properly understand and adjudicate a CUE claim,and It only took Nehmer PHila VARO only 3 weeks to do that on my IHD CUE, after it sat at Buffalo RO for almost 8 years.

You might want to get a vet rep who understands what CUE is. to support your CUE claim.

It all rests on the VA as having documented medical evidence to include SMRS and discharge certificate at time of the alleged CUE decision.

And then it means that there should have been a rating ( by virtue of that med evidence) at least at 10% on the rating sheet,of the past denied condition.

Every SC award they make, that was previously denied ( for the same condition) should trigger the veteran to look over their past denials for potential CUEs in them.

I think I posted some of my CUEs in the CUE forum.

I followed the criteria that is in your VCAA letter and sent them any evidence I had to support there CUEs, plus I sent them the actual past decision and rating sheets.

I think your CUE lies in the rating sheet and the Evidence list for that 1995 denial.

Your BVA remand might show us more that might help.

Pete 992 is making a good point too and 38 CFR.3.156 can be searched here for much discussion.















We have considerable info here in our CUE forum....

I suggest you go over it all carefully.

Can you scan and attach the 1995 decision as to their Reasons ans Bases and the Evidence list?

And the rating sheet, to see if they in fact gave you a NSC rating for the migraines with a diagnosis code and if that was at 10% or more NSC.

Cue is like the Waterfate question....what did they know and when did they know it?

At time of the 1995 decision, was there a documented diagnosis of migraines and did the evidence list show they obtained your SMRs?

Can you give us the BVA Docket number and Citation number?


The VCAA notice is odd.They arent supposed to send VCAA notices for CUE claims, but they say it had not been adjudicated so maybe this is why you received it.

However the info from VA is exact as to what you need for the CUE.

Most of my past CUEs were based on errors they made on a rating sheet,in 1998.

One was a "'lack of diagnosis" which sounds like you have basis for regarding the migraines.

The VA had plenty of evidence that my hhusband had IHD. ( they were trying to cover this up because I had filed FTCA/1151 claims.)

I proved that they had more than enough evidence,documented in his VA med recs, to list as NSC ( at that time) and rate the heart disease (IHD)

I filed that CUE in 2004 and it was awarded in 2012. Never went to the BVA .

Other CUEs I filed since have taken much less time.

My present CUE was filed in Sept 2012 and never acknowledged until Feb 2015.

In February they acknowledged the evidence they had ( since Sept 2012) and also I listed it all on the 5103 waiver.

They refuse to read my evidence so I have taken many additional steps to get it properly considered.

I was told my current CUE was with a 'specialist' many times in 2013-2014.

It was a lie. It didnt even get read until I contacted the UnderSecretary in Feb 2015.

My point is, some ROs can properly understand and adjudicate a CUE claim,and It only took Nehmer PHila VARO only 3 weeks to do that on my IHD CUE, after it sat at Buffalo RO for almost 8 years.

You might want to get a vet rep who understands what CUE is. to support your CUE claim.

It all rests on the VA as having documented medical evidence to include SMRS and discharge certificate at time of the alleged CUE decision.

And then it means that there should have been a rating ( by virtue of that med evidence) at least at 10% on the rating sheet,of the past denied condition.

Every SC award they make, that was previously denied ( for the same condition) should trigger the veteran to look over their past denials for potential CUEs in them.

I think I posted some of my CUEs in the CUE forum.

I followed the criteria that is in your VCAA letter and sent them any evidence I had to support there CUEs, plus I sent them the actual past decision and rating sheets.












Link to comment
Share on other sites

  • 0

We have considerable info here in our CUE forum....

I suggest you go over it all carefully.

Can you scan and attach the 1995 decision as to their Reasons ans Bases and the Evidence list?

And the rating sheet, to see if they in fact gave you a NSC rating for the migraines with a diagnosis code and if that was at 10% or more NSC.

Cue is like the Waterfate question....what did they know and when did they know it?

At time of the 1995 decision, was there a documented diagnosis of migraines and did the evidence list show they obtained your SMRs?

Can you give us the BVA Docket number and Citation number?

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use