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Atlcocky

38 CFR in previous years

Question

Hello Veterans,

I have been looking for the 1996 version of the 38 CFR, especially Book C. I am trying to research whether or not I have a valid CUE claim. The original decision was in 1996 and I need to find out the rules at the time of my denial. I have looked online but, maybe I am not very good at the search.

 

Thank you for your help

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 Atlcocky,

Welcome to Hadit.

Why/What do you think was a CUE? in your original decision?...> 1996  WOW.

We need more information to help you.

Edited by Buck52

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I agree with Buck.  The regs have changed multiple times, and the proposed changes are first published in the federal register, where you can sometimes comment on the proposed changes.  

Most of the time, when researching CUE, identify what you think may be a specific error rising to the Cue standard of review.  

Remember, being based upon the regs at the time is only ONE of the cue criteria.  The error must be outcome determinative, and also undebatable.   You have to show that, except for the alleged cue error, there would be an entriely different result.  

In your research, I recommend:  Viewing CUE as a last resort, only after simpler stuff fails, such as reopening under 38 cfr 3.156 b or 3.156c.  You also want to resist the . temptation to think of Cue as being synonomous with "error" but rather think of it as the cue "standard of review".  Essentially, you dont want to raise the "standard of review" to the highest level of cue UNLESS there is no other way.  Often cue seekers forget that its almost always much easier to keep the standard of review as low as possible, because, remember, you have to jump over that bar, so make the bar as low as possible.  You may have been able to clear a 6 feet high jump when you were young, but now, I would have trouble jumping 2 feet.  

Make no mistake:  cue is about effective dates, and nothing else.  Otherwise, you simply re apply and get benefits, eventually, after applicable appeals, but at the wrong effective date.  

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We have much info on CUE herein our CUE forum.

I am a 'Cuerino" and a few more members have had success with CUEs.

In 2003 and 2004 I filled 2 CUEs on a 1998 decision. 

I was 100% sure the ratings had not changed ( SMC) but I went to the BVA search feature:

https://www.index.va.gov/search/va/bva.jsp and to the SMC regulations themselves.

BVA decisions contain the regulation citations and dates when they are deciding on a CUE that had been appealed.

We have some winner CUEs here in our CUE forum-this one was a biggy:

https://community.hadit.com/topic/56181-cue-retro-back-to-39-years/

The decision link is in that post.

As Broncovet said, the allegd CUE must have been outcome determinative---meaning , if they had not made the CUE, you would have received some SC Cash....but the disability had to have been ratable at least at 10%,

and the error had to have been a 'legal error' , clearly identified in the CUE claim.

Can you scan and attach the 1996 decision ,to include the Evidence list?

(Cover your C file # , name, prior to scanning it.)

Also the date of the decision you claim CUE on must be correctly stated in the CUE.

I have not only always stated the exact date but also enslosed a copy of the decision I filed CUE on.

I filed 2 more CUEs on the 1998 decision, since they awarded it, last one was awarded in 2015 I think.

My theory is, if the VA has committed one CUE and it is provable, it is 'as likely as not' they might have committed more CUEs in the same decision.

As Broncovet says, CUE should be the last resort....and I agree but then again I feel all VSOs and vet reps should look for CUE potential , even in recent decisions, right away.

In February I wrote to Sec Shulkin, asking him to prepare a Fast Letter to that affect, as one of my ideas to reduce the backlog. Maybe I should write to him again on that.

Hopefully you can attach the older decision for us to see.

 

 

 

 

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Buck, Bronco and Berta,

I will respond completely and thoroughly this afternoon when I get back home. I wanted to let you all know I am monitoring but out of position to fully respond.

 

Talk to you all this afternoon and Thank you.

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In a past post you made , (July 2017) you stated this:

"I want to find out the best way to attack a claim and EED issue.  I have informally and formally requested a nerve condition claim (mainly neck, arm and hand). The condition was in my service medical records and missed or ignored when I got denied for the back, neck and shoulder issues back in 1996. Since separation, I have sent them several documents stating that I have a nerve problem. The American Legion has sent them a request to adjudicate the nerve condition. It is also mentioned in a SSOC and on a C & P exam. I believe that I have an extremely strong case on the service connection part. On the EED, should I just file the claim knowing that I will appeal or fight it on CUE? or is there a way to fight for the EED in the initial claim request?"

Have you had any response at all yet from the VA on that?

I dont know if this is even a CUE scenario......as it seems to be an unadjudicated claim...or maybe a 38 CFR 3.156 issue.....as Broncovet suggested.

If they award the claim, then it might well be a CUE scenario on the past denial.

Hard to really know yet.

 

 

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