Reason to file Cue.?

[Buck52]

If a veteran finds some decerpises in an old close claim and can prove the VA was wrong in applying the EED  Would this be reason enough to file a CUE or undebatable decision on the VA?

If veteran was approved for a service connection at 0% and later on was increase to 50%  5 years later  is the VA required by VA Law to go back to the 0%date and add the 50%rating compensation?

 although in the decision award letter it stated they are only going by the date the veteran filed for increase.......this is a little hard to understand but this is the best I know how to ask it.   I just don't trust a VSO to ask.

Undebatable:

Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994). 

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Anyone want to take a shot at this?

Thanks

.............Buck

[Berta]

 

To clarify, a CUE is NOT a one shot deal. VSOs want us to think it is ,because many of them are too lazy or incompetent to know how a denied CUE can be re filed.

I have already posted that info here many times.......quoting the BVA on that issue.

"If a veteran finds some decerpises in an old close claim and can prove the VA was wrong in applying the EED  Would this be reason enough to file a CUE or undebatable decision on the VA?"

If those "discrepancies are Legal Errors" ( explained in detail here, check out Broncovet's posts from the VBM by NVLSP) and the EED was wrong based on established medical evidence in VA's possession at time of that decision,

that warranted a better EED, than a CUE claim would be in order.

"If veteran was approved for a service connection at 0% and later on was increase to 50%  5 years later  is the VA required by VA Law to go back to the 0%date and add the 50%rating compensation?"

No way.

If the established medical evidence in VA's possession warranted a higher than '0' rating (assuming the "0" was a SC "0" and not a NSC "0")

then that would have CUE potential.

 

 

[Buck52]

.  Ms berta  quoted ''To clarify, a CUE is NOT a one shot deal. ''

Opposed to

''Anyone want to take a shot at this''

This was only referring for advise/suggestions filing a CUE  & not meat a CUE is NOT a one shot deal.

   you misunderstood.

Ms  berta  not sure? or how to handle this ? request VA to CUE them self  or file for reopen claim? this claim is 14 years old now

Quote from Ms berta

''If the established medical evidence in VA's possession warranted a higher than '0' rating (assuming the "0" was a SC "0" and not a NSC "0")

then that would have CUE potential.

yes  and waiting on c-file  to check and see if this evidence is in it.??

Thanks Berta ....I'll try to find broncovets post .

 

.................Buck

 

Edited April 27, 2016 by Buck52

[Buck52]

Ms  berta  not sure? or how to handle this ? request VA to CUE themself  or file for reopen claim? this claim is 14 years old now

Error

If VA finds an error in a previous decision, the effective date of the new decision will be the date from which benefits would have been payable had there not been an error.

Difference of Opinion

A decision that is based on a difference of opinion will have an effective date of the original decision had it been favorable.

Increases

The earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, the date the claim was received.

 

Quote from Ms berta

''If the established medical evidence in VA's possession warranted a higher than '0' rating (assuming the "0" was a SC "0" and not a NSC "0")

then that would have CUE potential.

yes  and waiting on c-file  to check and see if this evidence is in it.??

Thanks Berta ....I'll try to find broncovets post .

 

.................Buck

 

[Berta]

I again feel I would be  repeating myself ,of over a decade or 2 ,of solid CUE info I have posted here ad finitum......

so.....best  to find Broncovet's post and all of those with the word 'CUE' and 'Berta' in them.

I have no idea if you have a CUE basis. That depends very strongly on the established medical evidence in VA's possession at time of the alleged CUE -able decision.

It is The Watergate question sort of.......what did the VA know and when did they know it.

If you read my SMC CUE claim stuff you will see what I mean.

Established means documented medical evidence, documented  by VA in a past rating decision and/or  in their Evidence list.

In VA's possession means anywhere in the VA system VBA VHA, VARO etc etc etc .

I had a letter from a former VA Secretary to support my CUE, one piece of many pieces of evidence.From VACO.

It co- oborated the established and documented medical evidence they had in 1998.

It was never in my C file. Or the veteran's VA medical records. The letter came from Washington DC, the Secretary signed it and I kept it for over 20 years.

That was "evidence" in "VA's Possession" in 1998.

And it was Golden.

 

 

 

 

 

[broncovet]

Yes.  I posted from the NVLSP "Common Effective date errors" and you need to check to  see if those apply, Buck.  

Your effective date is the later of "date filed" or "facts found".  The facts found is the date the doctor documented that you were disabled (or had an increase).  There are exceptions to this general rule, and those exceptions are in the post that Berta and I mentioned.  

You should be able to deterimine the date you filed.  The question is,

1)  What date did the doc say your disability increased? and

2)  Do any of the "exceptions" in the NVLSP document apply, to you?  

Some important exceptions:

a)  Did you apply within a year of exit from service?  (in your case, I dont think so).

b)  Was there a favorable change in regulation?  (you should get the better of the new or old regulation, but NOT with CUE..thats the old regs.)

c)  Did you submit new evidence within the appeal period, OR do you have new service records?

d)  Did the VA give adequate reasons and bases for rejecting favorable evidence?  

e)  Did the VA give you proper notice of your appeal rights, and can you document same?  

f)  Are you a Nehmer claimnant?  

g)  Did you apply for an increase within a year?  There is a special exception there.  

h)  Did the VA make a legal error?  Failure in duty to assist wont be CUE, but failure to issue an applicable SOC or SSOC probably is remandable error.  

i)  Dont forget the "pending claim" doctrine.  This has a huge affect on EED. 

[Buck52]

Yes I have a lot of reading to do...knowing how a CUE is explain is different on how to present one...guess depends on all the established evidence of fact.

I wish Flip (Phillip Rogers) was still around  he is the one that found this error  and I never proceeded with it.

I DEFINITELY  Need my C-file  and see what records correspond with what records I have on my person,?

I know in my new claim last year that I filed on PTSD & was awarded 70% and given the SMC S1 H.B.. because of my official ratings I had  the 70% helped me meet the SMC Criteria.

As I was looking at ''What we Decided''& Evidence used and how they put up what my ratings are at different dates on the rating sheet and the 50% was  supposedly granted in 1998.

I never knew about it until 2003 After I filed an NOD  to a proposal to reduce from an Increase filed in 2002 and a C&P Examiner opt to reduce my ratings altogether....DRO Hearing at RO straighten that out  and was awarded the TDIU P&T .

They went back to when I first filed increase on the 50%  back to 2002(one year of retro) on the increase of 50%   and Flip was saying they should have went back to 1998.

However I know VA can and will make mistakes and put the wrong dates down  this is why I need to check all my records from back then.

Filing this CUE should not make any difference in MY current rating.

I just want to make sure I have my established evidence to prove they made error on the EED.

without it  they will Hang my from the highest Tree.

If I don't have the evidence I need to prove VA  Made an error on the EED.

Then I will withdraw this CUE Claim ''I thought ''I had. (My dear old grandpa use to tell me( ''you know what thoughts did)  **- **** - ***- ******.

Right now I'm just seeing what my option are to this point.

Thank you Ms berta for all your advice & research and the wonderful help you give to all of us veterans...I do understand you get tired of repeating yourself here on hadit