ptsd Examples Of What Is Cue And What Is Not Cue

[broncovet]

First,

What Cannot be CUE?

The Code of Federal Regulations provides that the following situations do not constitute CUE:

(d)


(1) Changed diagnosis. A new medical diagnosis that ‘corrects’ an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn’t matter if the evidence on the veteran’s side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: “when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that ‘the result would have been manifestly different.’” Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA’s previous rationale for denying the claim.

What IS CUE?

Analyzing a BVA Decision for the following types of substantive errors:

BVA findings of material fact that are "clearly erroneous":

Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied

Failure to comply with a BVA or CAVC remand order

Failure to reopen a claim supported by new and material evidence

Failure to consider a claim or legal theory reasonably raised by the record

Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law

BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record

The BVA's Failure to Explain Why It Rejected Positive Evidence Supporting the Claim

Some Examples of CUE

Failure to Fully & Sympathetically Develop Claim

Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA’s failure to “fully and sympathetically develop a veteran’s claim to its optimum.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE.

For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin’s disease, the VA has a duty to adjudicate a claim for Hodgkin’s disease on the veteran’s behalf (Hodgkin’s disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin’s disease would be CUE and the effective date for the Hodgkin’s claim will date back to the date of the back injury claim.

38 CFR 3.156© Using Newly Added Service Records

You can use 38 CFR 3.156© to get an earlier effective date “if the 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.” So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156©. An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156© to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion).

Thanks to Katrina Eagle, and John Forristal

[broncovet]

This is the "short version" of what can/cannot be CUE, its an older post, probably still relevant.