Wait for CUE decision or file additional sc claim?

[marina53]

My husband is 100% P/T disabled vet TDIU, no further exams. With the new proposal to eliminate the TDIU for vets who have reached retirement age, we are very concerned that his TDIU will be cut. Because of his disability, he has very little social security. There have been SC claims that have been denied, but may be able to be re submitted. The issue is that he has a CUE pending and his VA lawyer told him "Don't rock the boat with any new claims because it will set the CUE back even further". Any thoughts on this as to what he should do?

[Berta]

" My husband filed Form 9 over 2 years ago to Denver Regional Office and has not heard anything, nor can he get any information when he calls them. "

Can you scan and attach here the decision he filed CUE on? (Cover C file #, name, address.)

Better yet, instead can you copy and attach a redacted copy of his CUE here?

I disagree with the attorney's advice. But the attorney might be right...

My last SSOC on the CUEs I filed in 2003-2004, double DRO review in 2005 due to GCY CUE I filed via IRIS,and all the meaningless illegal  rhetoric VARO sent to me, involved a I-9 appeal filed in 2004-2005? and was awarded in 2012 under Nehmer and CUE. That was the IHD CUE.And the SMC CUE.

It never went to the BVA, because they were set to transfer it , but ,as I mentioned, I asked the Nehmer VARO to adjudiate those CUES.

I did have a BVA award based on a AO DMII claim that I filed during process of the CUEs above. Forgot to mention it earlier.

Filed in 2003, awarded in 2009. I was thrilled, after a double DRO review, to get that into the hands of the BVA.

In early 2009 BVA remanded per my request for a legal VCAA letter (which I never received  at that point) but they also asked for another VA med Opinion. I had 3 for and they wanted a third VA opinion. I got the opinion right away and sent the BVA my lay medical rebuttal and they disregarded that 3rd VA opinion and awarded my claim.2009.

I forgot ,in my last reply that I did file the direct SC AO DMII claim after I filed my 2 CUES, that were pending at my VARO for almost a 

DECADE. I have been on my RO's S--t list since I won my FTCA/1151 claims in 1997-1998,still am...this is not your situation at all.

I like being on their S list. Everyone at my VARO is like the Cheers TV show-they all know my name. 

And I sure have the names of their illiterate employees.

 

 

 

 

 

Edited May 30, 2017 by Berta

[Berta]

Gee, I forgot your main question......Go to www.va.gov/ , the main VA web site and click on Contact Us and then click on Ask a question ,and they will direct you to IRIS where you an ask for the status and whereabouts of the appeal. Or enroll into ebenefits to find out.

If using IRIS, ask for email reply ( that way you have documentation of what they say)

 

[marina53]

Thanks Berta for all this great info.  My husband has decided, for the time being, to contact the attorney and work through him regarding the status of the CUE. If the CUE is treated properly then the whole TDIU thing is a moot point. And hopefully, as TBird says, this whole thing with the TDIU cuts will be DOA. Seems so cruel to cut the TDIU for vets who are disabled and haven't been able to work. It will hit the most elderly, probably in their late 80s and 90s very hard, but the brunt of it seems to be directed at VietNam vets who are at the social security retirement age.

[broncovet]

I will offer another perspective.  There is no time limit to filing a Cue, but the effective date of the claim will be the "date of claim" OR "the date the doctor says you are disabled".  So, my advice is:

1.  File the claim.  

2.  If the claim suceeds, then you can file an appeal as to the effective date.  

3.  If BOTH of these fail, you can stil file a CUE later.  

     I think you should keep in perspective a "cue claim" is mostly about the effective date.  So, first you get service connected, then you can appeal the disability percentage.  You can also appeal the disability percentage AND the effective date.  

      My suggestion is to not make the claim more difficult than what it already is.  Remember, CUE is a "standard of review".  So, if you can make it easier on yourself (by getting a lower standard of review) with a "regular" claim or "regular" appeal, then you should do so.    You only want to file a CUE when filing a claim results in an unfavorable effective date.  

CUE STANDARD of REVIEw IS THE most restrictive and hardest to achieve.  

Regular claims and regular appeals preserve the "benefit of the doubt", when CUE does not.  

You wont be awarded any benefits via CUE that you could not in a "regular" claim or appeal.  That is, "CUE" wont fix an absent nexus.  The only advantage to a cue claim is that you could get an earlier effective date PROVIDED that you meet all the criteria for benefits for a regular claim.  

You can still file a cue, later, if you dispute the effective dates.  

I suggest not burning down any bridges, and file the claim, and, appeal if necessary.  I consider CUE as a "last resort" to get an earlier effective date.  VA, like others, is hesitant to admit to an error.  But, sometimes they will award benefits.  

If you have a claim pending and a cue for the same issue, then expect VA to work the pending claim first.  The VA uses the term "downstream issue".  

First, is always the issue of service connection.  

Second, is the disability percentage.  

Finally, the effective date.  

The VA always does this "in order".  You wont get a decision which reads.  We are denying service connection with an effective date of xx/xy/zz.  You get no effective date until you have both service connection and disability percentage.  That is why the effective date is a "downstream issue", from the other 2.  The effective date is irrelevant if you are denied service connection.  

You always want to go in that order, and cue is always about the effective date.  

Remember, just because there is an error, does not necessarily means the error rises to the Cue standard of review.  

A cue error has to be "outcome determinative" so failure to dot an I or cross a t is not cue, as that is not outcome determinative.  

However, after you are service connected and have a disability percentage, you can cue the effective date if you think VA should have awarded this earlier.  

 

[marina53]

Thank you, broncovet. The new claim would be a claim that was denied in the past. The CUE is a different thing that was not rated corrected to begin with.

 

[broncovet]

Ok.  Just keep things in perspective.  You still have to have met all the criteria for the disabily, under the laws that were in effect at that time.  NO BOD.  The error has to be "outcome determinative".  

If you read va decisions they use the term "harmless error".  Its not enough VA makes an error.  One good example is failure of VA to "do duty to assist".  

Any thing that involves a "judgement call" will fail CUE.  And, a doctors error is not cue.  The va makes a call based on the doctors medical opinion, and issues a decison.  If the medical opinion is incorrect, then you need to rebut it with another docs opinon.  A layperson's judgement that the doctor is in error is insufficient to rebut a competent medical professionals opinion.  Of course, docs make mistakes, but the only way to fix those is with another docs opinion.  CUE will not work for this, as the VA had a bases for its decion, even if the medical opinion is faulty.  You have a right to challenge a medical opinon, but cue is not that method.