ptsd Templates for CUE claims

[Berta]

I am tired of discussing CUE claims. I will try to bump up some of the important threads in this topic on CUE -when I get some time....

that will make it easier for me to refer others to what they need to read because READING is how to win CUE claims.

This is a good template for any CUE being filed within the one year appeal timeframe, prior to an NOD being filed:

http://community.hadit.com/topic/65701-need-some-guidance-scratching-my-head-on-a-denial/

This veteran knows they committed a legal error. He could see it right off the bat. You have to read the whole thread to understand this type of claim.

38 CFR 4.6 violations will screw up a claim from the git go unless they can be corrected, and sooner than later is always best.

Traditional CUE claims are claims filed due to a legal error in any past unappealed decision, or if it was appealed and remained denied you can still file CUE on it. BVA decision you feel contain CUEs to your detriment need a Motion for CUE filed with the BVA, or a Motion for Reconsideration. The Motion template for BVA Motions should be here somewhere as I have posted it 2 or 3 times.

If a VSO says you cannot refile a CUE that they denied, the VSO is ,as likely as not

full of crap. The BVA makes that clear when they state in many denied CUES that the veteran is not prejudiced from filing another CUE- the vet just has to word it correctly.

In some cases however they do not state the non prejudicial part because the claim is so far off base.

 By studying BVA denials and awards of CUE anyone can see what the BVA means.

You cant 'guess' on what a CUE is. That is why the BVA will deny a CUE claim that does not clearly identify the exact legal error.It has nothing to do with the established medical evidence.That cannot be changed under CUE. It has Everything to do with the diagnostic code, and the rating sheet in many cases. And it has everything to do with the regulations at time of the Cued decision.

I don't know if my IHD CUE is on my new PC.....it was short and sweet. Cue Claims don't need extemporaneous stuff.

1998 decision , An Award granted for DIC under 1151 due to misdiagnosed heart disease,and strokes.

The stroke ratings were wrong and they failed to even put the IHD onto the rating sheet.

Maybe this is why I was not on the Nehmer list for NVLSP. If IHD NSC had been there perhaps my AO claim would have moved faster.

The stroke CUE template is in this forum. As well as the SMC CUE template.

This is one of my older templates:

The IHD CUE basically stated that "under auspices of 38 USC 5109A, the VA committed a clear and unmistakable error by failing to list and rate the deceased veteran's IHD, that was clearly established under Section 1151 in the 1151 DIC award letter  of 1998, as enclosed."

The stroke CUE just stated the ratings were wrong (under auspices of 38 USC 5109A)ratings were changed to 100% P & T under 1151 due to that CUE.

The SMC mandate (the legal violation) was the main piece of evidence I had for that claim.I used a specific excerpt from M21-1MR and also a brief page of the VBM by NVLSP.

The established medical evidence (100% P & T  for PTSD) and 100% P & T for the stroke equaled SMC S under either version, 100% plus 60 and also Housebound. 

My most recent CUE, that I am still poed about ,was due to the same violation, that the vet in today's post linked above,  has found.

In this case VA did not ignore any non VA IMO I had, the VA blatantly  ignored a medical opinion from the chief cardiologist at VA Central.

It just goes to show that if VA thinks they can get away with these types of errors they will try, even by ignoring their own doctors.

And believe me, they are hoping we don't take the time to READ our decisions thoroughly and they want us to stay in the dark about legal errors that are detrimental-not to them but to us

-in the form of CASH they still owe us. That is what the regulations mean by showing their error has  "manifested" an "altered outcome" which could end up being a Mega cash award with a successful CUE claim.

 

 

 

 

Edited April 4, 2016 by Berta

[broncovet]

Berta posted,

"VA blatantly  ignored a medical opinion from the chief cardiologist at VA Central."

I looked up to try to find the specific regulation when VA fails to give a reasons and bases as to why they did not consider a particular piece of favorable evidence, and found only this:

Ryglowski v. Shinseki, (12-1672, SJ, decided July 10, 2013) The Secretary admitted to not discussing three pieces of evidence, but said he was not required to discuss everything. The Court concluded that even if the VA is not required to discuss each piece of evidence, that where the documents “appear to be relevant, material, and favorable…” to the claim, the Secretary must consider the evidence and therefore, should discuss it. The Secretary asserted that any error that resulted was harmless since other evidence was similar to the evidence not discussed. However, the Court stated that it could not make the determination whether the error was harmless or not, because that would require the Court to engage in factual analysis of evidence that was not previously considered by the Board, which it cannot do. Damschen v. Shinseki, 12-630 (SJ, decided 2-15-13) The Board has an obligation to consider all relevant evidence and is presumed to have done so. However, the consideration of evidence does not eliminate the Board’s separate obligation to provide adequate reasons or bases for a decision. The Board has to explain how it considered and weighed the facts favorable to the Veteran.

[Vync]

50 minutes ago, broncovet said:

Berta posted,

"VA blatantly  ignored a medical opinion from the chief cardiologist at VA Central."

I looked up to try to find the specific regulation when VA fails to give a reasons and bases as to why they did not consider a particular piece of favorable evidence, and found only this:

Ryglowski v. Shinseki, (12-1672, SJ, decided July 10, 2013) The Secretary admitted to not discussing three pieces of evidence, but said he was not required to discuss everything. The Court concluded that even if the VA is not required to discuss each piece of evidence, that where the documents “appear to be relevant, material, and favorable…” to the claim, the Secretary must consider the evidence and therefore, should discuss it. The Secretary asserted that any error that resulted was harmless since other evidence was similar to the evidence not discussed. However, the Court stated that it could not make the determination whether the error was harmless or not, because that would require the Court to engage in factual analysis of evidence that was not previously considered by the Board, which it cannot do. Damschen v. Shinseki, 12-630 (SJ, decided 2-15-13) The Board has an obligation to consider all relevant evidence and is presumed to have done so. However, the consideration of evidence does not eliminate the Board’s separate obligation to provide adequate reasons or bases for a decision. The Board has to explain how it considered and weighed the facts favorable to the Veteran.

Under the CUE rules, would Ryglowski only apply to cases from 2013 forward?

 

[Berta]

VYNC, that case was remanded as far as I know and nothing at all has altered this longstanding VA regulation:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

The VA can reject evidence that they deem as cumulative and redundant but as the court stated in Ryglowski, the BVA ( and the ROs too) must weigh probative evidence.

An IMO from a real doctor is Probative evidence.

Buddy statements  with details given and contact info, is probative evidence.

Most of you here gave VA Probative evidence in order to succeed on your claims.

The kicker to 4.6 is

 "Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the " etc

"thoroughly and conscientiously studied"./...aka, the raters have to have the ability and willingness

to read.

They also have to know what is and is not Probative evidence.

That is a judgment call sometimes but more often than not ( and the main point of every CUE I ever filed)

They completely ignored Probative evidence , evidence that was prime facie evidence, and I raised hell every time they did that in my case, because I cannot determine if the raters were illiterate or ordered to ignore anything in my evidence submissions to would warrant an award.

I was denied for every claim I ever had, by my RO, over the past 20 years, until they caved in and honored 38 CFR 4.6.

If our claims could be handled the way civil cases are handled, this would absolutely not happen.

We are stuck with a faulty pseudo legal system that does not give us ANY Discovery rights and with backlogs that

VAROs have created.