Read first if you think you have a CUE potential

[Berta]

Please  scan and attach the decision you think holds a valid CUE-cover your C file #, name, address prior to scanning it.

And add  that to your CUE question post. It is easy to attach or paste from a scan here.

We really cannot opine on a possible CUE if we  cant see the decision.

 

 

[silverdollar22]

I’ve got another one in the works. My lawyer submitted it after he noticed it; 

Status of Your Claim

• Submitted: 06/21/2018 (Compensation)
• Estimated Completion: 09/19/2018 - 11/25/2018
  Estimated Completion InfoTooltip with additional information
• Disabilities Claimed: CLAIM FOR CLEAR AND UNMISTAKABLE ERROR FOR FAILURE TO GRANT SERVICE CONNECTION FOR RIGHT HAND ARTHRITIS ON AN AUGUST 1998 RATING DECISION (Reopen)
• Representative for VA Claims: CHUCK R PARDUE
• Current Status: Gathering of Evidence
• I can take a picture or scan the decision letter back in 98 in which I claimed pain in my right hand. The VA In their infinite wisdom looked at my little finger that got crushed and never examined my pain in hand claim. After reviewing my smr it states that I complained about it and they diagnosed my hand with arthritis x 5 months. Here is the evidence on my CUE; 

[Berta]

I couldn't make the scans horizontal- cant read unless I print them off and I dont print off stuff here due to the HIPPA laws but based on what you stated here-if the hand disability was at a ratable level then- they seem to have definitely made a CUE in that decision.

[broncovet]

Well, I pretty much "dont" dispute Berta's opinion, for 3 Great reasons: SHE IS RIGHT.  

However, Im a big fan of "not making something more difficult than necessary."  

The Cue "standard of review" is the most difficult to meet, reminding you the benefit of the doubt goes out the window.  

Reopening, due to 38 cfr 3.156 b or 3.156 c, would "preserve" the benefit of the doubt, and lower the "bar" you must jump over to win.  

Im not saying . "it isnt CUE", Im saying if you reopen due to new evidence, then the cue standard of review may not be necessary and you may be making things more difficult for yourself.  

Only a small portion of "errors" rise to the Cue standard of review.    That is, not all "errors" are CUE errors.  You have to show the error was not only undebatable and not a judgement call, but you also have to show it was outcome determinative and based on the evidence at hand.  

Lets use an example, and I dont know if this applies or not.  

In this example, lets say someone in VA messed up, and, for whatever reason "Evidence A" was not in your file.  The decision maker renders a decision not considering "evidence a".  Well, this is unlikely CUE because the decision maker rendered a decision based on what evidence he had available at that time.  The procuedure here is not to file a CUE, because that unfairly does not give the Veteran the benefit of equipose, and instead means his evidence has to be undebatable.  In this example, you could win benefits by reopeing due to new and material evidence, but you could get a cue claim denied.  One reason for this is because the VA's failure to due the Duty to assist is not cue, but would often be considered "harmless error".  It would be your responsibility to show that who ever did not consider this evidence was an "outcome determinative" error.  

Another example in this same tune is if the VA decision mis spells a word.  They leave off an "i".  Well, a spelling error would unlikely be outcome determinative, so it would instead be called "harmless error", and not cue.  There are many "harmless errors" VA can make and sometimes its hard to know, for sure, if that error would up being "outcome determinative".  

My suggestion is to try reopening the claim based on new evidence.  If this fails, then you can still file a cue motion because there is no time limit on cue motions.  

The key here is understanding that unadjuticated claim is pending.  A claim remains pending until finally adjuticated.  There is no time limit.  You see, when you reopen a "pending" claim, you get the effective date you opened the claim originally, see 38 cfr 3.156 b.  Its about the "pending claim" doctrine, which is somewhat complex.  Suffice it to say a claim remains pending until "finally adjuticated".  

Its possible, or even likely, that a motion for Cue is denied because the claim is pending, as cue errors apply only to finally adjuticated claims.  

Example:  You apply for benfits, VA "forgets about" your claim for 5 years.  You get mad and file a Cue.  VA denies your Cue claim because they simply say, "Oh, we are working on your claim.  We are really sorry (gee isnt that backlog awful?) but we will get to your claim as soon as we can, but must deny your cue, as it isnt a finally adjutciated issue.  

[Buck52]

 I Agree with broncovet here,

I've always went on the CUE philosophy that if it will change the outcome DECISION in the Veterans favor  File CUE. if it don't...Don't file CUE.

And broncovet gives some good examples. 

Edited July 19, 2018 by Buck52

[Buck52]

I just wanted to point out  for veterans that use pencil for lay statements or from Dr's medical notes   make sure you use ink or type write all your correspondence from now on  on your claims application and any paper you write on and submit to the VA

THIS IS COPIED OVER AND THE MACHINE THEY USE WILL NOT COPY PENCIL LEAD..IT NEEDS TO BE DARK INK OR DARK TYPING.

or it will not transfer over to where you can read it...all this stuff is placed in your C-FILE and when it don't copy  its useless.   the paper will be there but blurry as to where you can't read it  or just a blank sheet of paper that did not copy over.

[silverdollar22]

Thanks for the information, but what is done is done. If they deny the CUE I can still file to reopen the claim, But only with new and material evidence right? Could that be in my SMR where it states that I have arthritis in my hand?