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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Read first if you think you have a CUE potential


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  • HadIt.com Elder

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.

 

 

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I felt that one of the docs was a SMR that stated arthritis in hand-( the 4th page you scanned with yellow highlighter on that statement) but if that was an SMR page, ( I think it is ) I am sure

Yes it was my SMR and the third and fourth page is the decision letter. Yes they stated that they reviewed my records numerous times and missed the arthritis in hand part. If I remember right there’s

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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
  • 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; 

C74A9A44-3EC3-4491-951E-2AE6FF701ACF.jpeg

7A583FBD-70BC-4156-93C8-EA0B4B7E5174.jpeg

C96F0FE2-DEBA-4504-AA10-7752930AA827.jpeg

1D0BAEC5-9245-4861-89A3-3B924BFBE949.jpeg

379BDEE7-86BD-4A57-A781-7E91A2A4034F.jpeg

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  • HadIt.com Elder

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.

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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.  

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 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 by Buck52
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