CUE Possibility?

[Jimmer]

Hi Everyone,  I have gained a wealth of information from your comments, and I do appreciated.   I have a interesting situation.  I filed for disability SC for my eyes within a year of getting out of the service in April 1970.  I was denied.  I applied again in May 1978, and was again denied.  I didn't do anything until 2006, when talking with a Veteran's advocate and explained my story, he felt I had a good case, and to apply.   I was denied , a couple of times until I received a BVA hearing, and I was then giving SC for my eyes. This was in 2014.  I felt I was "lowballed" with a 10% rating, until I was given a eye exam at the VA in March 2015, and my rating was increased to 60%.  In November 2015, the VA "CUED" themselves and increased my rating to 80%. I  am "legally blind" in the left eye, and my right eye isn't much better.  Here is the interesting part.  I never introduced new information, all of the information is contained in my SMR about what had happened.  The VA continued to maintained that I was released from the Marines, because my eyesight exceeded the requirements necessary to be in the military.  They cited that I wore glasses and was nearsighted.  I received two eye exams upon induction into the service, and no mention was made of my nearsightedness.   I also have a statement  that  the "pain below my left eye was shooting thru my left eye socket, to the back of my skull" , but the VA continued to take the position, that I had prior eye problems (not true ) before coming into the Marines.  The only thing I did in filing in 2007 was provide a "nexus" letter, of the information that was already in my file.SMR   I do feel that I should have a claim for back payment going to 1970, when I originally filed the claim.  I was young and ignorant then, and really didn't know my rights.  As I stated the information was and is in my SMR. visits to the doctor, being sent to Balboa Naval Hospital, etc.  Any input would be most welcomed.

[broncovet]

If your decision is within one year, then file a NOD disputing the effective date.

This means you can dispute the effective date of the November, 2015, decision,  by filing a NOD by/before Nov. 2016.  VA already admitted the CUE, you simply dispute the effective date of their cue.   

If the "other" decisions are within a year, go ahead and file a NOD to those also.  You can always "drop" that nod later, if it turns out its not necessary.  However, its much easier to "drop" an appeal than to try to file a CUE, and meet the toughest standard of review, the Clear Unmistakable Error standard of review.    Dont file a CUE, when a simple NOD will do.  REmember, CUE makes the "benefit of the doubt" disappear.  

It seems likely you will get a "Fenderson" or "staged" rating.  An example of a Staged rating would be that you get 10% from 1970 to 2006, and 80% from 2006-2015.  It would be based on "facts found", that is, when the doctor said your eye condition got worse.  

To do this, you simply file the "NOD" form, and state that you dispute the effective date.  

Are you working?  If your poor vision "prevents you from maintaining Substantial Gainful employment", then you should get TDIU.  If so, you should file the TDIU form.  

Edited March 28, 2016 by broncovet

[Jimmer]

broncovet, Thanks for the information.  I will certainly file NOD.  No  am not working, I am 100% IU (also have a 50% rating for PTSD) and I have submitted the TDIU  form, plus  a letter from my eye doctor, stating with my vision I could not be gainfully employed at any type of work,  i.e. sedentary, nothing.   

[Buck52]

Jimmer this may help you ..lot of reading tho.

Filing a Veterans Disability Benefits Claim for Clear and Unmistakable Error (CUE)

Feb 23, 2014 |

Filing a claim for clear and unmistakable error (CUE) can be a powerful method to gain an earlier effective date for service connection of your VA disability benefits and a large backpay award. You can file it at any time and, if successful, it is effective for the date you would have been assigned if the previous final decision that contained CUE had been granted. 38 CFR 3.400(k).

At the same time, due to the difficulty of meeting the requirements for CUE, a CUE claim is usually filed as a claim of last resort.

In order to establish CUE, the appellant must demonstrate: (1) Either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been “manifestly different.” Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, it must be undebatable that the VA made an error based on unconvertible facts or a misapplication of the law that existed at the time.

Successful CUE Claims

The following are some examples of successful CUE claims:

∙ VA’s failure to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).

∙ VA’s failure to apply applicable, existing regulations or statute at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

∙ VA’s failure to follow the regulations that govern whether an existing disability rating should be reduced, namely 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002).

∙ VA’s failure to properly apply the Schedule of Rating Disabilities. Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991).

∙ VA’s failure to apply 38 C.F.R. § 3.303(b) which establishes a presumption of service connection for chronic diseases diagnosed in service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008).

∙ VA’s failure to apply the regulation that governs conditions that preexist service. Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991).

Unsuccessful CUE Claims

Additionally, the following are examples of unsuccessful CUE claims:

∙ VA’s reliance on medical diagnosis in a BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial.

∙ VA’s failure to fulfill the duty to assist.

∙ BVA’s failure to properly weigh or evaluate the facts (weight of evidence).

∙ Change in the interpretation of a statute or regulation occurring after BVA decision.

Cannot Be Filed for CUE 

Furthermore, the following are situations when CUE claims cannot be filed:

∙ Board of Veterans’ Appeals (BVA) decision appealed to the Court of Appeals for Veterans Claims (CAVC) or Federal Circuit cannot be filed for CUE. See Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003) cert. denied, 540 U.S. 991 (2003).

∙ If BVA has denied claim twice or more and last claim was appealed to CAVC without success, all of the BVA denials are immune from revision based on CUE. 38 C.F.R. s. 20.1400(b) (2012).

∙ If BVA decision is so recent that it is still subject to appeal to the CAVC, a CUE claim cannot be lodged until no longer subject to appeal before CAVC. See Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). (Appealing a case to the CAVC is usually a better option than filing a CUE claim because it is much more difficult to prevail on a CUE claim.)

Filing a CUE claim can result in an enormous backpay award; however, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 21.1403(c) (2012). Further, filing CUE claims is a complicated process and could be an exercise in futility if you are not sure what you are doing.

 

[Jimmer]

broncovet, I had a quick question.  Should I mention on the NOD, that I feel I should receive the ratings (like you indicated) 10% 1970-2006, and 80% from 2006-2015? Or should I just not mentioned that part?  Thanks for your help, I do appreciated. 

[Guest]

Jimmer, The only thing I did in filing in 2007 was provide a "nexus" letter, of the information that was already in my file. This statement can really screw up any retro payment due to the evidence in your records prior to 2007.  Yes, you may have treatment records in your SMRs but keep in mind that to warrant service connection a veteran must have 1. An in-service injury or disease 2. A current diagnosis and 3. A nexus that connects 1 and 2 together.  So yes you had this in 2007 but did you have all this in 1970 and 1978.  If you decide that you want to file a CUE, I would recommend that you find an attorney that is very familiar with VA and CUE claims because they are very hard to win and many here will tell you that VA likes to say that even though you have evidence in your records that evidence don't rise to the point of being a CUE. Also keep in mind that filing a CUE a veteran lose the benefit of doubt. Now filing a NOD would be a lot easier if the evidence prove that you had the same conditions in 1970 and 1978.  Winning a NOD would result in the same benefits as filing a CUE claim you just have to ask for the earlier effective date and request the maximum rating by law and regulations.

[broncovet]

Jimmer:

    Most Vets dont "ask" for Fenderson (staged) ratings....the Veteran appeals the effective date, and sometimes the court will award staged ratings.  YOu should make it clear you are seeking the maximum rating available, at the earliest effective date allowable by law.  You see, if you met the criteria for 10%, but no greater, in 1970, or 1978, then thats all they will likely award.   Better yet, consider an attorney, and here is why:   

    In order to get 46 years of retro, even at 10%, you can "bet your sweet bippy" the VA is gonna fight you tooth and nail for this.   The retro potential on 46 years gets to be SERIOUS cash, especially at 80% or more, if you are TDIU.  

    For this reason, I would recommend you speaking with a couple attorney's, and, at a minimum, see if they are interested in your case.  To do this, you are gonna want to scan in those old decisions, as well as your applicable medical evidence, as these attorneys will want to see everything before they decide to take your case. 

    You are sitting on a potential gold mine, but you need to hire a miner (attorney) to get the gold out.  YOu might be able to do this yourself, but you will need to be willing to devote serious amounts of time becoming an expert on effective dates, because VA is going to throw you as many curve balls as they can to try to strike you out.  Guaranteed, VA does not hand out 46 year retro's like hard candy at a parade.  

     To begin, you would need to buy a Veterans Benefit manual, probably both the electronic and paper versions.  Mine is the 2014 Version.  A VBM will set you back a couple hundred bucks.  I think My VBM has 52 pages of stuff JUST on effective dates.  Remember, merely "reading" these 52 pages wont do, you will need to also read the cases which the VBM cites also.  

     I have studied effective dates for several years, and I would not even consider suggesting you take my advice, but instead get your own attorney.  Get a NOVA attorney.    

Edited March 28, 2016 by broncovet