No news good news???

[2NDMARDIVDOC]

I submitted a CUE claim via FDC a few months back. I was granted a C&P exam for the issue. Regional office also requested a medical opinion from the examiner. The exam and the MO was very favorable. The claim is now in the "pending decision" phase. My question is, is it true that if my claim did not meet the requirement(s) for a CUE, would the VA have notified me? I have not received any notifications from them other than the exam. So does that mean they consider the CUE valid?

[Berta]

I felt and still do , that this veteran had a very valid CUE basis but I also raised the fact that it could also be a 38 CFR 3.156 issue.

I asked here if others agreed......need to find all of those posts..........

Their are multiple different threads on this matter.  one is my fault-----1981 EED for PTSD CUE  BVA award ----I think  the topic was.....because MARDIV asked how far back a CUE can go.

 

[Berta]

Here is that post:

This claim ain't over yet!

The 3.156 issue might have supported  the re-open and then the additional C & P exam...........

 

Edited January 13, 2017 by Berta

[Berta]

To clarify ....the recent favorable C & P might have been on the other pending claim(s). This was the issue I was concerned about re: CUE re: PTSD denial

http://community.hadit.com/topic/68691-good-or-bad/#comment-422798

2NDMARDIVDOC

This gives some background. PTSD denied

 

Then 

http://community.hadit.com/topic/68721-and-the-plot-thickens-wth/

PTSD awarded.

 

 

The CUE I believe is on the EED……..there are many threads here in different topics.

The denial (first link above) involved the C & P exam:

“Hello to all and thank you in advance. This is going to be long winded but I want to provide as much detail as possible. Back in Feb of this year I submitted my first claim for non-combat PTSD. I discharged in 2002 and I am a non-combat Vet. Prior to filing for PTSD in Feb of this year I had never been seen for mental health and did NOT have a diagnoses of PTSD. I submitted claim for PTSD as regional verified my stressor and scheduled me for a C&P exam. The "doctor" was a complete xxxxxxx (excuse me) and talked down to me for an hour.

When I finally read the report a few days later I saw that he remarked that I did meet all the criteria for PTSD and checked all the boxes that would have gotten me about 70% but then went on to say that because I waited so long to file, in his opinion, my PTSD was less likely than not to be from military service. He also sited a few incidents that I had after discharge that could have been the PTSD stressor..

I was floored when I read the report. I immediately disputed it and the VA denied my claim anyway. The denial letter basically said that they could not grant PTSD without a diagnoses of PTSD. Within a week of the denial letter I made appointments with the mental health clinic at the VA as well as booked an appointment with a civilian psych Dr for an eval. In total I have seen 3 different doctors since the denial and all 3 have confirmed a diagnosis of PTSD RELATED to military service. My civilian psych doctor also filled out a very favorable BDQ for me. He diagnosed me with PTSD and Anxiety related to military service and named specific events inn service including the already verified stressor. “

The key words are “already verified stressor:”

 

AND

The CUE is also within the fact that there is no regulation as to any time limit for filing PTSD claims. But that would be a tricky CUE to file.Not impossible…just tricky….

I knew the veteran would be awarded for PTSD-  which he was upon re-open..(the examiner said 70%)..

but I suggested when he got the SC PTSD award (2nd link above) that he file CUE on the past denial,and  I think that past denial was in Feb 2016.

...if they gave him the wrong EED........which should be Feb 2016.

 

 

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Edited January 13, 2017 by Berta

[2NDMARDIVDOC]

Hi guys. Thank you for the replies. I appreciate the time but things have gotten pretty twisted here. All I'm asking is this.... if someone files a CUE / reopening on a past denied claim, if that claim does not meet the requirements for a CUE.......YET IS ALLOWED A REOPENING FOR SERVICE CONNECTION CONSIDERATION, does the VA have to notify the Veteran via mail that it did not meet the CUE requirements PRIOR to the notification of whether or not the S/C for THAT perticular issue was awarded??

 

[Berta]

I do not think a re-open can be generated by a CUE claim.

A reopen needs N & M evidence whereas a CUE claim rests on the evidence in VA's possession at time of the alleged decision being CUed.

VA once or twice sent me what appeared to be a VCAA letter on what a CUE claims should involve....years ago. They are not supposed to send VCAA letters for CUE but could ask for more info...maybe...

"does the VA have to notify the Veteran via mail that it did not meet the CUE requirements PRIOR to the notification of whether or not the S/C for THAT perticular issue was awarded??"

That makes sense.in a way.......but who would file CUE on a SC decision, if the SC had not been established yet?.................................................................................then again that too depnds on the nature of the decision and how the CUE is shaped.....

but  I think I stated to you somewhere here some time ago, that if they awarded you for SC PTSD (I was 100% sure they would) then you could file CUE, but for a better EED,by filing CUE on the older denial.

Have you ever posted the CUE claim that you filed ,here? so Many different threads....hard to follow

 

[Berta]

to add...I learned a lot about CUE from buying the VBM since 1991 but VA regs changed so much that I learned a LOT more by reading BVA CUE Denials as well as BVA Awards.

This is one of the beauties we have here:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files2/1615671.txt

Plenty more winners in the CUE forum and some recent ones like Gastone's and SPO's CUE awards.

I really dont think anything I posted above makes sense...I dont quite understand the question.....CUE is unique to each case and the biggest problem with CUE claims is that they are not worded correctly, or that they fail to properly identify the legal error(s).

And we are only taking a WAG (wild Ass Guess) if we dont have the past decision  posted here..

The link is a CUE that involves 38 CFR 4.6 as well as other stuff.

I have posted here ad finitum the requirements for a successful CUE claim.

They will be stated as well in BVA CUE decisions.

 

Edited January 14, 2017 by Berta