Cue Claim

[Charleese]

Hi Everyone, please tell me what you think of what is listed below. Do you think they will accept this as a NOD or not and do you think that they will resolve this CUE Claim first, as asked.

On August 8, 2005 my husband submitted his CUE Claim (with the help of Berta), to the AMC/BVA in Washington, DC. On November 30, 2005 the BVA in their decision sent it to his RO in Hartford Connecticut for development along with his 1958 claim to be developed as well. They specifically stated that these were two issues that needed to be developed.

Because my husband had not received anything in writing concerning his CUE Claim, and because when he made calls to 800# they would tell him his CUE CLaim was under appeal, and he would tell them that it was his 1958 claim that was under appeal and not his CUE Claim, they kept insisting that it was his CUE Claim. He even wrote the Director of RO letting her know that his CUE Claim was being confused for his 1958 claim which he did a NOD for and was now under appeal. He explained to her that his CUE Claim couldn't be under appeal because it was never developed and that he never did a NOD for it. The Director never answered his letter back. Because he never received any written communication for his CUE Claim since it was sent to RO by BVA on November 30, 2005, in November 2006, he decided to do a VA IRIS inquiry about it. The inquiry was answered stating that: "As of ll-8-06 your claim is in our appeal unit. It is taking longer than normal to process due to our heavy volume of claims. We are very sorry for any inconvience this is causing. Our letter date July 28, 2006 explained the process of the appeals unit. We hope to complete your appeal as soon as possible."

My husband immediately responded to this inquiry letting them know how could his Cue Claim be under appeal when it had nver been developed, nor was their any written decision on it had ever been made, so that he could do a NOD for it. He also told them that the July 28, 2006 letter specifically stated that this letter was for his 1958 claim. No where did it state that it was for his CUE Claim.

On November 28, 2006 I did a NOD for my husband using the November 8, 2006 date outlined in inquiry. I stated the following as part of the basic: " Recent Federal Circuit decisions hold that if a veteran files more than one claim with the RO at the same time, and the RO`s decision acts (favorably/unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal begins to run. Therefore, I file this notice of disagreement to protect my rights against the failure of the VA to adjudicate all my claims and the failure of the VA to notify me under 38 U.S.C. 5104. " He also ask that they develop CUE Claim before 1958 claim.

Tell me do you think this will get him anywhere with his NOD. Thanks!

[Vike17]

A CUE claim is an appeal! When a veteran submits a CUE claim, they are in essence appealing a decision on the basis of being clear and unmistakable. The Appeals Teams at the RO's handle all appeals, including CUE claims, unless of course the appeal has been forwarded to the BVA.

Vike 17

[jbasser]

A Cue is a collataral attack on a decision deemed final. A claim in appeal is not final. You cannot file a CUE claim unless the decision was a final decision. However, The VARO can call CUE at anytime it deems necessary.

[Charleese]

A CUE claim is an appeal! When a veteran submits a CUE claim, they are in essence appealing a decision on the basis of being clear and unmistakable. The Appeals Teams at the RO's handle all appeals, including CUE claims, unless of course the appeal has been forwarded to the BVA.

Vike 17

Thanks Vike 17. Yes we know a CUE claim is an appeal, however each time he called 800# they would tell him that they didn't have a CUE claim for him. They would say all they had for him was his 1958 appeal claim, that's why he did his NOD the way he did.

[Charleese]

A Cue is a collataral attack on a decision deemed final. A claim in appeal is not final. You cannot file a CUE claim unless the decision was a final decision. However, The VARO can call CUE at anytime it deems necessary.

Thanks jbasser for your reply. He knows that there had to be a final decision before a Cue claim could be submitted. There was a final decision before he submitted his CUE claim.

[Vike17]

jbasser,

You stated;

You cannot file a CUE claim unless the decision was a final decision

Not really true. A veteran can claim a CUE was made also if they are within the one year appeals period. For example, let's say the VA assigns DC code 5243 for IVDS and the veteran was given a rating of 20% with a foward flexion of 15 degrees. This constitutes a CUE as the rating schedule clearly states that if forward flexion is less than 30 degrees, a 40% rating is to be assigned!

Vike 17

[Berta]

Vike- do you have a specific reg on that?

I am not questioning what you said-

I filed a CUE in 1996 not knowing if it was a CUE-or not -I had been denied for a pension although it was a very small one but with three weeks I got a proper decision and retro-it was on a pension decision and they owed me a few checks. They clearly erred in their reading of my income statement and multipied wrong.

I presented this as a CUE but at that time I did not really know if it was one- it does bear out what you said-

Also I asked the VSM to CUE a decision in 2005 and this resulted in a DRO conference.

Then I asked the VSM to CUE my illegal transfer to the BVA. She never answered my letter, nor would my vet rep support me on that.

I got the remand myself in 51 days.

I got the idea that VA can CUE itself when VA Regional Counsel cued them on a very old CUE I had which was denied.

In essense it was VA cueing itself- the check came but it took over a week for me to find out what it was for-

a considerable amount of offset that they had withheld erroneously in 1998.

I dont have a reg that shows they can cue themselves.