Cue Question

[carlie]

Doesn't CUE have to be on a final UNAPPEALED decision ?

carlie

Edited November 12, 2006 by carlie

[Berta]

Right-

If the decisions came from the VARO and was unappealed- a CUE can be filed against the same VARO that made that decision.

If a decision came from the BVA and remained unappealed -the CUE claim has to be filed with the BVA.

My case is an example-

I had an old CUE at the BVA in the 1990s. I let it go when they denied.

In August the VARO attempted a re-open of this CUE at the BVA.

Don't know why-

they had to file a Motion at the BVA to re-open it.An old BVA unappealed decision.

(when they illegally trasferred my claim to the BVA I asked the VSM by mail to CUE that decision. She never replied but I got a remand in Sept. I think the Motion they filed on the older CUE-in August -knowing full well I should not have been transferred to the BVA- was just a butt covering tactic-

The BVA told me they could not even determine what claim this Motion was filed on-I think they sent that back with my claim when they remanded.)

My present 2 CUE claims I filed at this RO involve

1. an RO decision in 1998 that was never appealed.

At the time my vet rep made a remark-when he read the decision-(DIC award under 1151) as to why they didnt consider the veteran's 1151 disabilties (over 100%) for SMC. I had received the posthumous 100% PTSD award a few months prior to this award).and then he just shrugged his shoulders and started talking about something else.

I was dumb in those days.

He should have advised me to file a NOD on the lack of SMC consideration.

I really didnt understand SMC at all then.

The veteran was 100% SC and 100% Sec 1151.

The veteran at time of death had a Section 1151 claim pending and also a higher SC rating request.

CUE- 1998 unappealled decision from the RO.

legal error in lack of proper SMC consideration and award

manifested outcome-retroactive accrued SMC under 1151.

Evidence: the rating decision, statements from VA that he was not entitled to SMC "under any cirumstances", and a Office of General counsel pres op that says veterans with 1151 disabilities are eligible for proper SMC consideration and appropriate award.

The veteran-they tried to say-had never filed a Sec 1151 in his lifetime thus they tried to deny on that basis-

But he did and it is right in the c file- and had been at their rating board for 6 months before he died.I had re-opened his two claims.

The other CUE- the veteran-I proved to the OGC-had significant heart disease which caused his death-yet VA had failed to diagnose and treat it.

The Cue is based on legal error in lack of any diagnostic code or rating for the veteran's heart disease.

In any final decision they made , they never rated this.

Tricky scenario-

The VA OGC report that confirmed the veteran's heart disease had been undiagnosed and contributed to his death (FTCA, 1151) was rendered from Washington DC a week before the first unappealed RO decision was sent- 1997.

The RO could say they had no idea of this FTCA award at time of the 1997 decision.

However I found in the c file and via my own notations from 1995 that the VA had proof of the veteran's misdiagnosed conditions (report from VA Chief doctor to regional counsel) in 3 months after I filed the claims.Yet they strung it out and 'lost' these important documents and the claims took 3 more years.

The 'lost' records showing VA medical statements concurring with major misdiagnosis -dated within months of my re-opened 1151 claim -were right on the bottom of my c file.

CUE-#2 - The legal error is that NO decision nor rating whatsoever had ever been made for the veteran's heart disease, evident in 6 years of VA med recs, causing his death under Sec. 1151.

Retro also under SMC regs.

Evidence -med recs from 1988 to death showing heart disease by ECHO, EKG etc,

entries from med team that showed they knew it but didnt treat it, 1992-

autopsy (they lost that too many times in the 1990s) and VACO report from Chief Cardiologist Team of the VA.

I had the VA call a CUE on itself in 1997 and also I asked them to CUE a past denial in 2005-which resulted in a DRO conferenece with my vet rep-

Counsel Cued them, in my behalf 2 years ago, regarding another CUE I filed against them but didnt appeal- like a dope-

Regional Counsel caught this CUE when I re-opened my claim.

I repeat my present CUEs here often because they are examples of what I believe the CUE criteria is and how it must be fulfilled.

The medical evidence stands as it is-in a CUE claim.Medical evidence is not technically part of the CUE.

The legal error in addressing the medical evidence is where the substance for a CUE comes in,by a failure to give proper Diagnostic code, lack of any diagnostic code, and/or lack of proper rating and/or a failure to apply SMC provisions when the medical evidence warrants it.

Edited November 12, 2006 by Berta

[carlie]

Berta,

That's what I was thinking but Mr. Higgins keep saying it has to be an appealed decision --- so TERRY ? ? ?

carlie

[Berta]

Was his post a typo? I saw that too----

Terry has -I believe - a CUE filed on an unappealed final decision he received many years ago.

I think "unappealed" is misleading-I should have clarified that --- it is a Final-unappealed decision that can be cued.

I Cued an old decision at the RO (PTSD causing Rod's heart disease and strokes-there was some support for this in the veteran's med recs from 2 VA doctors- plus I made the point that the veteran's PTSD -which led him to access the VA for treatment for PTSD,(no other hospitals treat it around here) that this need for PTSD therapy itself had put him into harm's way (VA medical care)-since his other disabilties were misdiagnosed by VA and caused his death (1151,FTCA)

It had been appealed at the RO level , then went to BVA and was denied.

Since I did not pursue it and go to the CAVC-it became a "final" unappealed decision.

I think this is the final unappealed CUE claim decision that the RO is attempting to re-open.

The only real good point my former vet rep ever made in 3 years was that- if this CUE claim flies- they have snookered me out of Nehmer retro.But I will take the CUE retro and NOD their decision.

Edited November 12, 2006 by Berta