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]

Maybe I should have clarified that a little better. Generally, CUE is for decisions that are made final and are not subject to being appealed. CUE is the only way VA can go back legally and and correct decisions that have become final and couldn't have been changed based on the same evidence. If the decision is still within the one year appeal period, normally, CUE becomes a moot point, because the appeals team at the RO or the BVA can change that decision without it having to be CUE. However, one can still contend CUE while the decision is still within the one year appeals period. Does this make sense?

Vike 17

[Berta]

YEP- we are on the same page for sure-

[jbasser]

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

That still is not a Cue. That would be a reconsideration. The claim would not have been final unless the 1 year period had passed. Even though a CUE was onvolved and it should be addressed by the rating official upon doing the reconsideration during the 1 year time limit. It the decision is past the 1 year stage and is final. Then Cue can be persued.

[jbasser]

More on Cue from M21.

7. Clear and Unmistakable Error (CUE)

Introduction This topic contains general information on CUE per 38 CFR 3.105(a), including

• the definition of the term clear and unmistakable error

• the provisions of 38 CFR 3.105(a)

• the determination requirements

• identifying a CUE

• handling allegations of CUE

• determining a case of CUE

• handling decisions made by Rating Veterans Service Representatives (RVSRs)

• applying the benefit-of-the-doubt rule

• revising prior decisions, and

• approval of ratings prepared under 38 CFR 3.101(a).

Change Date December 13, 2005

a. Definition: Clear and Unmistakable Error A clear and unmistakable error (CUE) is an error that is undebatable in that a reasonable mind can only conclude that the original decision was fatally flawed at the time it was made.

b. Provisions of 38 CFR 3.105(a) 38 CFR 3.105(a) provides that if clear and unmistakable error is established in a previous rating determination, then the

• prior decision is reversed or amended, and

• effect is the same as if the corrected decision had been made on the date of the reversed decision.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

c. Determination Requirements A CUE determination must be based on the record and the law that existed at the time of the prior decision.

In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim.

Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.

d. Identifying a CUE A CUE exists if

• there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

• Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

• VA overlooked material facts of record, or

• VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA’s failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

• CUE, see 38 CFR 3.105(a)

• potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and

• CUEs based on VA’s constructive notice of medical records, see

 VAOPGCPREC 12-95, and

 M21-1MR, Part III, Subpart iv, 1.3.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

e. Handling Allegations of CUE Determine the precise nature of the claim when CUE is alleged. Regional offices (ROs) or the Board of Veterans’ Appeals (BVA) will deny claims of CUE if the claimants do not specify the factual or legal errors at issue.

A claimant is not entitled to raise a particular claim of CUE again once there has been a final decision denying that same CUE claim.

If the CUE alleged is different from a CUE issue previously rejected, a rating is needed to determine whether or not a CUE was made on the new issue.

f. Determining a Case of CUE When determining whether there is a CUE

• consider the

 law that existed at the time of the prior decision, and

 full record that was before the rating activity at the time of the prior decision, and

• determine whether the error would have by necessity changed the original rating decision.

Note: Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.

g. Handling Decisions Made by Rating Veterans Service Representatives (RVSRs) Decisions based on the judgment of the RVSR, such as the weight given to the evidence, cannot be reversed on the basis of CUE unless the decision is the result of misapplication of directives, laws, or regulations.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

h. Applying the Benefit-of-the-Doubt Rule The benefit-of-the doubt rule of 38 U.S.C. 5107(:) is not applicable to a CUE determination since

• an error either undebatably exists, or

• there was no error within the meaning of 38 CFR 3.105(a).

Reference: For more information on applying the benefit-of-the-doubt rule, see

• Russell v. Principi, 3 Vet. App. 310 (1992)

• 38 CFR 3.105(a), and

• 38 U.S.C. 5107(B).

i. Revising Prior Decisions Revise a prior decision to conform to what the decision should have been once a determination is made that there was a CUE in that decision.

j. Approval of Ratings Prepared Under 38 CFR 3.105(a) All rating decisions prepared by RVSRs under 38 CFR 3.105(a) require the approval of the VSCM or designee at the Coach level or higher. Ratings prepared by DROs would require the approval of the VSCM or Assistant VSCM if they would effect

• severance of service connection, or

• a reduction in evaluation of an SC disability(ies).

Exception: Approval of the VSCM or designee is not necessary if the rating is the result of a Board of Veterans Appeals or Court of Veterans Appeals ratings decision.

Reference: For more information on CUEs involving rating issues, see M21-1MR, Part I, 5.C.13.f.

[Vike17]

jbasser,

You seem to be a bit confused with some of the different proceedures with VA. Let me try to explain.

A Reconsideration is when a veteran would like the rating activity to reconsider a prior decion they made. In order to have the RVSR reconsider their prior decision, the veteran must submit "new" evidence within the one year of the VA making their decion. Keep in mind, a veteran must submit "new" evidence, that is evidence which VA was unaware of and did not have in their possession at the time of their prior decision.

A CUE claim is a claim that contends that there has been a legal error committed, not just an error such in as a judgement call. There are a number of things in the realm of VA that do not constitute CUE, such as failure of the "Duty to Assist" except in very, very exceptional cases, a judgment call on the RVSR (No matter how bad that judgment call may be), a change in a diagnosis, and incomplete medical records. VA might make an erroreous decision, but it doesn't constitute a CUE! The context of CUE is somewhat more complicated, but what I have stated is the basics of what it is.

A Notice of Disagreement (NOD) is a written notification to VA by the claimant that he/she disagrees with their decision. A NOD is generally submitted when the claimant disagrees with the way VA may have applied weight to particular evidence in front of them or the judgment of the rater. Granted when a claimant submitts a NOD, they can ceratinly submit new and additional evidence to strengthen their claim, but when doing so they could also ask for a reconsideration, which might go a bit faster than a NOD.

Vike 17

[jbasser]

I guess I have another CUE claim to file then since I have it in writing from a VSCM concerning a IVDS range of motion error adjudicated at 10 percent instead of the Listing of 20 percent According to the regs. It was also explained that any rating is based on the Veterans employment impairment caused by a service connected disbility and mine at the time only warranted 10 percent. Is that also a CUE?

If it is, Let me know and I will immediatly dig into it.

Thanks for straightening this old hill billy out.

John