38 CFR in previous years

[Atlcocky]

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

[Atlcocky]

15 hours ago, broncovet said:

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.  

Bronco,

Can you review the rating decision and the following reasons I believe I may have a case and let me knwo what you think?

[Atlcocky]

9 hours ago, Berta said:

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.

 

 

 

 

Berta,

I have uploaded the original decision and my thoughts. Thanks in advance

[pwrslm]

12 hours ago, Atlcocky said:

Yes sir Buck, I know that rule. I will only proceed if the case is strong.

CUE can only be filed one time AFTER the decision is final. You can file a request for reconsideration with the 21-4138 and document the error for correction. I have done this twice now and it  worked both times. The new law 38 USC 5104B (Higher level review by the agency of original  jurisdiction)  from HR2288 in Aug 2017 made the reconsideration by the agency of original consideration an avenue to resolve these issues before they are filed as appeals. Prior to this, this lower level reconsideration was only in the M21 manual, and there was nothing else governing it. Now it is US Code and the laws states that they MUST reconsider anything we put in writing.

They have the next year to implement the CFR regulations for this, but the VBA has been working this for over 2 years so far. This process will open the issue you claim errors on as a new claim, and if it is not a dispute that requires a C&P exam for clarification they can do it much quicker. This is a De-Novo review so you have a RO taking a fresh look at the facts, not the same guy that make the error to start with.

 

5104A. Binding nature of favorable findings.

(g) Higher-Level Review By Agency Of Original Jurisdiction.—

(1) IN GENERAL.—Chapter 51 of such title, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section:

“§ 5104B. Higher-level review by the agency of original jurisdiction

“(a) In General.— (1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction.

“(2) The Secretary shall approve each request for review under paragraph (1).

“(b) Time And Manner Of Request.— (1) A request for higher-level review by the agency of original jurisdiction shall be—

“(A) in writing in such form as the Secretary may prescribe; and

“(B) made within one year of the notice of the agency of original jurisdiction’s decision.

Edited October 4, 2017 by pwrslm

[Berta]

I have to leave and will check out the decision later but want to add this........

for years Vet reps etc have said CUE is a one shot deal. That is definitely not necessarly so......

There are 1622 claims deisions at the BVA with the search words "CUE" and "Dismissed without prejudice"

meaning the claimant can refile a CUE that conforms better to the 3 prongs of CUE.

This is one of them.

"The motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD is dismissed without prejudice to refiling."

https://www.va.gov/vetapp17/files2/1708211.txt

Unfortunately the VARO never makes that statement when they deny a CUE. Only if the CUE is appealed ,does the claimant know they have the right to re file it-in many cases, per the BVA, by a more careful wording of the CUE and evidence that covers the 3 "prongs" of CUE.

CUEs are for Legal errors only.

Cues filed on difference of medical opinions would only raise to CUE level if perhaps the diagnostic codes were used for the wrong disability.

Or ,in one of my CUES, the VA never gave my husband IHD a rating or diagnostic code at all, with 6 years of VA medical evidence in his lifetime that he had heart disease.

They did code him and rate him under Nehmer 2010 ,when the AO IHD regs came out.The VA had not acted on that specific CUE since I filed it in 2004.Nehmer VARO awarded 2 CUEs I had.

 

[Berta]

I dont see evidence of any CUE in the decision.

But by all means re open the claim with New and Material evidence if they are documented  as  permanent residuals or chronic disabilitys, as the decision states.

Others might see the decision differently than I do and they will chime in.

[Buck52]

 I don't see an error?  =CUE

If your trying for Hypertension ...it says in your reason and bases for a Well Grounded claim that

4-95 veteran was found to  have hypertension  during a pre-operative  evaluation

The Remaining  Records  were negative for any further treatment for this.

This is what they denied you on for the hypertension.

you can get a IMO to get this service connected but I doubt they will go back to the 4 -95  date.