CUE: How detailed should my assertions be?

[propp3]

Filed for a CUE last July, multiple assertions/issues, all relation to my original denial of a knee claim(never appealed) and a RO decision(on remand) to increase my % for my back condition, also final after BVA appellate review. All issues are old, dating back to '92(knee claim) '95(BVA remand to the RO re: my back) and '96(the BVA appellate review).

I've don lots of case law and regulation research, applicable at the time, supporting my assertions..all my cites/etc back up my assertions of what should have been done/followed, and what was done or not done, wrong(cites of case law, COVA decisions).

The RO passed(said nope), the DRO did not find in my favor(awaiting SOC), and I filed my VA-9/appeal to the BVA. Now I'm completing my summary, further presentation of issues, evidence in support, all my cites, etc.

My question? How detailed should I be? I've rec'd advice to keep it short, brief...a few pages. But every research I done about CUE says otherwise...explaining the need for detail/detail/detail. My statement/letter will probably end up after editing at a good 30-40 pages in length. Even with editing to eliminate redundancy, I feel all the issues I've asserted and a forensic eval of the evidence...with supporting case law/regulation/BVA remand instruction('95) cites included...is all necessary and important in making my case.

As I responded to one who advised almost absolute brevity....brevity hasn't accomplished shit for me in the past. After reading my VSO briefs and quotes of case law(about 2 pages), I was stunned by the *lack* of argument. 20 years ago I didn't know any better and thought and relied on the VSO(mine is DAV) as the *duty expert*. But like I said, it didn't work then(brevity) and I have little confidence it'll work now. Hell, I just recently found a case cite I think is of *extreme* importance to my CUE claim(Hyder v. Derwinski), and my VSO didn't mention...discuss with me, or even put forth in argument. I met my VSO appeal specialist for the 1st time only 20 minutes before my DRO hearing last June.

Opinions, advice? Anyone here win a claim of CUE and if so, how detailed were your assertions and arguments and presentation of evidence?

Prop

[propp3]

Good answers, Pwrslm, and, as usual, Berta.  "Just the facts, maam".  

Simply show how their decision, which stated, "xxxx" (quote the decision)  violated Regulation 38 CFR   3. abc   which states, "yyyy".  (quote the regulation in conflict with your decision).  

You need to understand that CUE is a "standard of review" and has a specific "legal defination".  :  

a. It does not mean they failed in their Duty to assist.

b.  It does not mean you think you should have got 50 percent and the rater gave you 30 percent.   

Instead, CUE must be:

1.  Undebatable.

2.  The error must be "outcome determinative".  The RO decison that misspelled  "Reegional Office" is irrelevant.  

3.  Based on the laws and facts available AT THE TIME OF your alleged CUE.  

Save some time and space keeping to the criteria for CUE and dont waste your time on "non criteria" such as your opinion.  They dont care your opininion! They dont care about my opinion or Berta's either.  

 

No, agreed. That's why I have been so very specific, to show my arguments meet the criteria...establish what was done incorrectly/not done but should've(as violation of law or reg), and that it wasn't a question of judgment or clerical error/misunderstanding. I eliminated a lot of redundancy and shaved down to 30pages(from 42) thus far. But I fear going to far because I don't want the VA to interpret my argument for me, then later tell me "oh, we thought you meant something else" :-)

[propp3]

CUE is used almost exclusively to try to win an EED.  Example:

You get denied for knee issue.  Many years later, the VARO awards you on knee issue.  

You appeal the effective date of the award, as you can point out theVA already admitted its service connected in the most recent decision.  Remember, VA wont dispute what VA says, they will dispute what you say.  That is why you use their words in the decision against them.    

Now, you have the task of finding an error in the early RO decision that MEETS THE CRITERIA FOR CUE STANDARD OF REVIEW.   

Not  just "any error", but an error rising to the CUE standard.  

You probably want to forget about the alleged CUE errors disputing the disability percentage, those are usually judgement calls, which dont meet CUE standard of review.    

One issue deals with the failure to adjudicate other diagnoses found on(remand) exam...exactly what one of the remand instructions specified.

[propp3]

One thing few realize about CUE. If you filed in 92 and didn't appeal, the claim "died". If your reopen the same thing in 96 and lose, then take it to the BVA and lose, it's dead.   Once it has been adjudicated at the BVA, you can never disturb the 92 RO ruling. You can file CUE on the 96 appeal but not the underlying 92 decision. 

Yes, I realize. One CUE issue deals with '92...knee only, which was never appealed, became final a year later, and was not subsumed by any appeal or remand in '95. Interestingly though, the examiner *did* do a knee exam in '95, and does include a dx of internal derangement of the left knee in his exam notes. he then states the etiology and pathology can not be determined further, without a MRI, which he recommends but does not order. (I really think now he had no idea why he was conducting the C&P exam, because the RO had him repeat the exam). This is the same knee I'd injured in service. In his 2nd exam, he also states the knee and back pain probably related "one affects the other" and even goes as far as to state "the back condition can also aggravate the knee condition, in my opinion"  drawing a nexus(I believe) also as a secondary(I was rated for my back injuries) condition.   The failure to adjudicate for the knee the VA can worm out of, they never including anything related-to on the SSOC, by saying the knee was not being appealed. But I find it near impossible for them to deny that the exam did not present new and material evidence at the time.  So another issue(now) deals with a new and material(left knee) claim based on that IMO/exam and dx then in '95. The VA can't say the evidence doesn't exist; it does. And it was never used in the previous claim(final a year later) so it's not redundant. The age of the evidence means nothing in that context

[broncovet]

There are many (dozens or even hundreds) of potential errors in a CUE claim.  Example:

You file a Cue that the VARO failed to comply with the "notice" requirments, that is, to send you the required notice.   Lets say that CUE fails, because the courts determined that was "harmless error" and not outcome determinative.  

So, you file another CUE on the same issue that the VARO failed to reopen the claim when you submitted new and material evidence under 3.156.  This time you argue that "Roberson's failure to give a sympathetic reading to the Veterans claim is upstream to the CUE, that portion of the CUE need not be undebadable, as per Comer.  

You can file different CUE's on different errors.  Most decisions have multiple errors.  The stare decisis attaches to the specific error, not to the disability claimed, IMHO.  

This is why there is confusion.  Some Vets think if they CUE their PTSD claim, they can never cue that again.  I disagree, tho I dont think that has been tested in court.  Ones PTSD claim can have multiple CUE errors, or Veterans Cue theories.  Its not unreasonable that one Cue theory was identified and denied, and that another CUE theory is victorious on the same disability.  There are 5 elements to a disability claim, 38 U.S.C. 1110 (war time) or 1131 (peacetime) consists
of the following five elements: “(1) [V]eteran status; (2) existence of a
disability; (3) a connection between the veteran’s service and the
disability; (4) degree of disability; and (5) effective date of the
disability.” Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (
emphases added); Fenderson v. West, 12 Vet.App. 119, 125 (1999)

Its possible or even likely that there are errors in more than one of these elements.    The VA must comply with regulations regarding all the elements, and there are multiple potential regualtions the VA could have violeted in each.  

Edited November 19, 2015 by broncovet

[Berta]

Good info again Broncovet.

A 1998 decision I cued contained three valid CUEs:

Lack of SMC consideration (violation of the SMC mandate, as the decision clearly showed the veteran was eligible for SMC.)

Lack of any diagnostic code or rating for the veteran's 1151 heart disease, clearly annotated in the 1151 DIC rhetoric in this 1998 award.( the medical evidence for the malpracticed IHD had been established within my 1995 FTCA case)

Lack of proper diagnostic codes and rating for my husband's 1151 stroke.

In one of my prior claims ( the DMII AO death claim) I raised the same CUE error Broncovet mentions here, lack of proper VCAA notice.

In widow's DIC claims the VCAA notice has specific regulations that are different from veteran's claims notices.

BVA agreed but found, since the evidence awarded the claim anyhow, that this violation was a moot issue.

If the BVA had not awarded ,I had already asked them to remand ,prior to the decision, due to the VCAA violation.

Also when the BVA dismisses a CUE claim " without prejudice" that means the veteran can possibly shape the CUE a better way and potentially succeed.

This case shows what I mean:

http://www.va.gov/vetapp10/Files4/1034764.txt