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mrstephens11

Unadjudicated claim noted in new claim's denial, CUE?

Question

I was admin separated from the Corps because of bilateral petal femoral pain syndrome.  I filed a claim with in one year of my discharge.  The VA sat on it for almost a decade, until I submitted another claim, asked about the first one and filed for the exact same issues as the old claim.  The only mention of this claim has been in my awards/denial letter.  In the awards sections I was told that my effective date was the date of my discharge due to an unadjudicated claim that I submitted with in one year of my discharge.

My question about the CUE is that if they are working with that unadjudicated claim that was submitted with in one year of my discharge, isn't everything that I claimed supposed to be presumed to be service connected?  I was active for 2.5 years and honorable discharged, I meet all of the in service requirements that I know of.

So what do you think, do I have a CUE since they never adjudicated the claim that was within one year of my discharge?  The only thing that I think is going to hurt me is that the unadjudicated claim still isn't in my ebenefits site or c-file, so they might say that my claim date was the date I filed the new claim.  Which is funny because they mention the old claim as the reason for my effective date being my discharge date.  I still have the old claim and reference number they gave me.

I'm at 80%.  I count this as a win, but I still want to push forward.  It's been a long fight and I'm not ready to give up.  The items I was denied for should bump me to 90%.

Thank you for your help,

Stephens

 

EDIT:  Can someone move this to the CUE section?  Sorry, I didn't realize I was posting in the wrong section.

Edited by mrstephens11
Asking to move post to the CUE section.

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If I read your post right, you have been awarded the benefit sought back to the date of discharge, so I dont understand the point of the CUE.  You can not get an effective date earlier than your date of discharge.  

Now, if you are alleging "other issues" were also unadjuticated, then that is a different story.  

There is a presumption when you apply for benefits within a year of discharge.  That is, if you did not have the malady when you entered service, but have it when you got out (within a year) its presumed it was caused by service.  

Dont go running to the "cue" stick just yet.  Cue is a "standard of review", and the toughest.  You want to keep the "regular" standard of review, which includes the benefit of the doubt when possible.  

It sounds to me like you simply need to (re) apply for the "other" benefits which apparently have not been adjuticated yet.  If or when you get these benefits also, yes it should go back to the date of discharge, if you applied within a year.  

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Thank you for that answer.  Yes, I was awarded for some items and not for the others.  Sadly, I let the year slide for the NOD.  I was scared to rock the boat after I got my award, but now I'm looking to move forward.

I just spoke earlier this week with someone from the Texas Veteran's Commission.  They helped me put in three CUEs as I had documents saying that these three items happened in service and the denial letter said they did not.  If I'm denied again, I will add this to the list and refile a CUE.  I'm pretty sure we have them on this as each item has documents and the C&Ps also had conflicting answers that work in my favor.  Such as reports of flair ups in some answers in the questions, then a direct "no" to questions about flair ups.  The guy from the TVC seemed very hopeful that this was cut and dry.

After I saw what he looked for on the CUEs I started looking through my paperwork and found more CUEs along the same lines.  When I put two and two together and realized that I shouldn't have been denied at least 0% SC on all of these items, I came here to ask. 

I will report back with any news!

 

Thank you,

Stephens

Edited by mrstephens11
grammar

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Ok, good.  Dont stop there.  Go ahead and reapply for those benefits you seek that were not adjuticated.  Here is why:

CUE is all about "effective dates".  Your CUE claim may wind up in appeals BUT your case for CUE will be MUCH stronger if you are already approved for the benefit you are CUE'ing.  Here is why:

      A CUE error must be "outcome determinative".  If VA mis spells a word, or fails on the duty to assist, this isnt CUE, because its not "outcome determinative".  You have to show (among other things) with cue, that "except for the error" you would be awarded xx benefit.  

     Well, VA forgetting to adjuticate that does not mean you automatically get that benfit.  It could mean you applied and were (somehow) not eligible for that benefit.  The BURDEN OF PROOF IS ON YOU for CUE, not the VA to prove you were not eligible.  CUE is a standard of review and is the most difficult to pass in all of VA law.  Much easier is the "benefit of the doubt", where you get the tie breaker.  There is no "tie breaker with CUE', except the tie goes to VA.  

      So, lets say you (re) apply for "bad knees", and VA awards you for bad knees, but does so Only for the past year, as that is when you (re) applied.  Now, you have proven you are eligible for that benefit, that is, that their failure to adjuticate is "outcome determinative".  

       Your VSO (TEXAS VETERANS commission) should have told you this, BUT, the VA gives them "free rent" in VA facilities.  Rememeber that saying, "there is no free rent"?

Well, your VSO just paid his rent to VA by telling you stuff that keeps you from applying and winning your cue.  

     CUE is way, way, way beyond the expertise of a VSO.  You need a lawyer who has a stake in the outcome.  Your VSO gets paid the same whether or not the cue "flies".  

      CUE is probably the most difficult aspect of VA law (along with effective dates), and only the best of the best file cue and "get er done".  Berta has filed several and won them, but she is a walking encyclopedia of Veterans law that rivals many attorneys.  

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So you are saying

  1. It's good I CUE'd but, it's a long shot.
  2. Reapply for what I was denied and get the SC.
  3. I should CUE them once I have SC, if the effective date is not my discharge date.

Thanks again,

Mike

 

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You are pretty close, yes.  

1 Its a long shot, and even longer when filed by the VSO.  

2.  By reapplying, if awarded, your CUE is stronger.  

3.  If you get awarded benefits, then file a "regular appeal" of the effective date.  

     Your cue may or may not work, but re applying is good either way.  I wont let a VSO file Cue for me..I want that done by a lawyer.  Cue is complex..very much so.  Contacting a lawyer is not all that bad and show him the CUE your VSO filed.  He should be able to advise you if he thinks it will fly or if there is a cue.  

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