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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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TitanII

CUE Resource Material

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38 USC and 38 CFR.....but you might need to go to a law library to  find the older regulations. I don't think you would need to however.

However CUE regulations have not changed as within this BVA decision regarding CUEs filed on decision in the late 1950s or 1960:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp04/Files3/0428007.txt

Disability criteria in some cases has definitely changed , as well as additional presumptives....

If we know more maybe we can help more.

 

 

 

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If a veteran was alleging CUE in a rating decision in, say 1967 I don't see how a 2015 DC description would be applicable ?

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Good point, Titan, and regulatory changes is a big deal.  Cue has to be based upon regulations at the time, but, there is a point on what VA calls "liberalizing" regulations.   The Veteran is supposed to get the more favorable, the new or the old regulation.  But that does not apply to CUE.  

Do you have the 1967 RO decision where you allege CUE?  Briefly, state the error you feel rises to the level of the CUE standard of Review.  

I find it helpful to think of CUE as a "standard of review".  I saw that term in one of the CAVC cases.  

It isnt enough for an obvious error to meet the CUE standard of review.  Lets do an example.  Lets say VA denied your "hairing loss" claim..mis spelling hearing loss.  Its obvious and undebatable this is an error.  

Its an error, but will never rise to the CUE standard of review.  Why?  Because its not outcome determinative.  CAVC calls it "harmless error".  You can not "reopen" this claim because VA misspelled hearing loss, and get it readjuticated back to your original effective date, because it does not meet the criteria for CUE standard of review.  

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I don't have anything going  back to the 60's, but I've read CAVC CUE cases that cite DC's and regs, some back to the 50's - so is there a publication or service that complies all this for handy reference ? The old, paper, law library is probably a sure answer, but it seems that considering the litigation explosion in VA since the late 80's someone would have put together a handy reference ?

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My advice would be:

   Take your entire Cfile (order it if you dont have it), along with your decision to an NOVA attorney.  Tell him what YOU think the error is, and ask him or her if the attorney thinks its CUE.  

   The reason is there is probably a half million at stake going back that far.  Do remember that CUE is mostly all about the effective date.  If the effective date is not relevant, then you can simply re apply or reopen due to N and M evidence, 38 CFR 3.156.  

    There are 3 difference senarios under 3.156:

1.  Its new service records.  Then the effective date goes back to the date you first applied. 

2.  Its NOT new service records, just new evidence, and you are "out" of the appeal period.  Then the effective date will be the date you submitted new evidence, if awarded. 

3.  Its not new service records, just new evidence, and you are "in" the appeal period.  Then the effective date will go back to the beginning of the appeal period.  

 

    Of the 3 above, items 1 and 3 will get you a very favorable effective date, if benefits awarded.  Number 2, will result in a much less favorable effective date.  Thus, if you can reopen under 3.156, you would want to do so, instead of CUE, in either #1, or #3.   However, if your senario is described in number 2, then CUE is your only method of getting a 1967 effective date.  

    Remember this, tho.  Lets say you got denied in 1967, and you sent VA a letter and said, "you forgot to consider xx evidence".  VA does nothing for the next 40 years.  Then in 2015, you apply again and get an award.  You can appeal the effective date of the 1967 decision and allege the claim is still pending as you never received a decision awarding/denying your request to reopen due to N and M evidence, so the claim is still pending.  In this instance you could get a 1967 effective date.  

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