Cue Versus Regular Claim For Disability Comp

[RockyA1911]

Can someone explain to me what the differences are if any between the way a regular claim submitted and the process the VA uses to process a CUE. Does the VA disgard a CUE claim that a vet included within a regular claim and process it via a different process? Will the VA process and award retro on CUE that is not a stand alone claim? Or do they defer that CUE portion of a claim and advise the Vet that he must file the CUE under a different claim process?

Just trying to figure out if they are handled in different methods from a regular claim with multiple conditions.

[Berta]

Rocky- best thing in my opinion to do is- file the CUE as a distinct and separate issue from the claim.

State the date of the decision (attachig it is good too) that they committed alledged error in,

state the regs that they broke (I attach these regs too)

and state that the error manifestly altered the outcome of that past unappealed and final claim.

I posted a draft of my SMC retro accrued CUE a few days ago-

might help you or someone else-

My CUEs showed up on the 800# PC as separate from my main claim for 2 years but now are all together with the main claim.

Since the ROs breeze through claims so fast-I think CUE issues should be separately filed from regular claims. SOmeone told me (forget who) that a more senior VARO claims examiner at each RO handles CUEs as they are legal issues and not medical ones.

The response I got from the RO on one of my CUEs did indicate that someone who understood it was trying to deny it.

I considered that a plus.

Edited January 12, 2007 by Berta

[Vike17]

Rocky,

When a claimant contends that a CUE was allegedly made with a decision by their RO, then that 'appeal' is processed through Appeals team at the RO of jurisdiction a any other appeal would be.

For example, in your senario you asked, if a veteran submits new claims for let's say a right knee condition and their low back and at the same time contends that here was CUE error made in a prior decision for let's say hearing loss, then, normally the VA would work the two new claims and refer the contention of CUE to the appeals team.

Does this answer your qiestion(s), or were you trying to ask soemthing else?

Vike 17

Edited January 12, 2007 by Vike17

[RockyA1911]

Thanks Berta,

I have a few more questions. Must the CUE filed against the specific VARO that committed the clear and unmistakeable error? In my case I may have two. The 1976 CUE was committed by VARO St. Louis for not applying CFR 38,4, 4.71a and service connecting the skull loss. Service connection and compensation was awarded service connection for residuals skull fracture. Despite undergoing cranioplasty for service connected skull fracture (actually compound depressed skull fracture, open head injury not closed) I was not service connected for the 4.5cm x. 4.5cm skull loss resulting from service connected skull fracture.

Failure of RO to apply CFR 38, 4, 4.71a in rating decision dated 25 April 1977 from VARO St. Louis, MO manifestly altered the outcome of the past unappealed and final claim in that I suffered a loss of 50% VA monthly compensation, per CFR 38, 4, 4.71a, from effective date of 28 November 1976 which is over 30 plus years of substantial monetary loss due to clear and unmistakeable error in rating decision dated 25 April 1977.

I feel judging from the latest percentage notified of that the VARO in Cleveland only awarded 30% for the Skull Loss even though the size is 4.5cm x 4.5cm and the CFR calls for 50% for that size greater than a 50 cent piece. This decision is dated 5 Jan 2007 with retro only to April 05.

Will I have to file two separate CUEs?

Here is the kicker. The first CUE was made by VARO St. Louis. The IF second CUE is made by Cleveland VARO. My current jurisdiction VARO is Chicago and they have never rated me for anything. My C file was transferred to Chicago from St. Louis in June of 05. VARO Chicago farmed my claim out to Cleveland for rating decision.

I have read where NODs and appeals must be submitted to the VARO that rendered the decision. As confusing as it is now, does this mean I have to file the first CUE to St. Louis and the second one to Cleveland even though my VARO in Chicago has jurisdiction of my claim and C-File?

Or should I just file the first CUE if I have to and make it the only one whereas if favorable decision the retro would be two things, 50% rating and EED of 28 Nov 1976 all because the RO failed to consider and apply DC 5296 under the CFR. And this first CUE would also take care of the lesser rating % recently applied by Cleveland, even though Cleveland recently awarded service connection for skull loss? (Don't know for sure.

I guess what I am asking does just the first cue take care of everything else, the rating percentage, and EED retro?

I also found this to be very valuable. A BVA decision awarding service connection for skull loss despite having a crainioplasty.

Citation NR: 9618053

Decision Date: 06/27/96 Archive Date: 07/08/96

DOCKET NO. 94-19 795 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Louis,

Missouri

THE ISSUE

Entitlement to service connection for skull loss.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Laura M. Helinski, Associate Counsel

INTRODUCTION

This matter comes before the Board of Veterans’ Appeals (BVA

or Board) on appeal from a February 1994 rating decision of

the Department of Veterans Affairs (VA) Regional Office (RO)

in St. Louis, Missouri, which denied the benefit sought on

appeal. The veteran, who had active service from November

1979 to December 1983, appealed that decision to the BVA for

appellate review.

The Board notes that in association with an in-service head

injury, the veteran has been service connected for

posttraumatic encephalopathy with borderline memory,

evaluated as 30 percent disabling, major motor seizures,

evaluated as 20 percent disabling, and scars of the right

frontal area secondary to head injury and surgery, evaluated

as 10 percent disabling. The veteran’s current combined

disability rating is 50 percent. Despite undergoing a

cranioplasty for the in-service head injury, the veteran has

not been service connected for skull loss. This appeal is

limited to that issue.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that he should be service

connected for skull loss, due to a cranioplasty he underwent

in relation to an in-service head injury. This operation

replaced a portion of his skull with some artificial

material. Therefore, a favorable determination is requested.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.

§ 7104 (West 1991 & Supp. 1995), has reviewed and considered

all of the evidence and material of record in the veteran's

claims file. Based on its review of the relevant evidence in

this matter, and for the following reasons and bases, it is

the decision of the Board that the preponderance of the

evidence supports a claim for service connection for skull

loss.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable

disposition of the veteran’s appeal has been obtained by the

RO.

2. Service medical records reflect that the veteran

underwent a right frontal cranioplasty in March 1983 for a

defect resulting from an inservice head injury.

CONCLUSION

Skull loss was incurred in active service. 38 U.S.C.A.

§§ 1110, 1131, 5107 (West 1991 & Supp. 1995); 38 C.F.R.

§§ 3.102, 3.303 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board finds that the veteran’s

claim is “well grounded” within the meaning of 38 U.S.C.A.

§ 5107 (West 1991 & Supp. 1995). See Murphy v. Derwinski, 1

Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49,

55 (1990). That is, the Board finds that the veteran has

presented a claim which is not implausible when his

contentions and the evidence of record are reviewed in a

light most favorable to that claim. The Board is also

satisfied that all relevant facts have been properly and

sufficiently developed. Accordingly, no further development

is required with the duty to assist the veteran in

establishing his claim. 38 U.S.C.A. § 5107.

The veteran’s service medical records indicate that in May

1982 he was hit in the head with a tire iron. This resulted

in a fracture and indentation of the right frontal skull, for

which the veteran immediately had suturing. The defect

measured approximately two and a half by three centimeters.

Following subsequent complaints of headaches, the veteran

underwent a cranioplasty in March 1983 to replace a portion

of his skull with some artificial material.

Based on the evidence of record, the Board concludes that the

veteran experienced some skull loss due to a right frontal

cranioplasty. Hence, the preponderance of the evidence is in

favor of granting the veteran service connection for skull

loss, and the claim is granted. See 38 U.S.C.A. § 5107(B).

ORDER

Service connection for skull loss is granted.

WARREN W. RICE, JR.

Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures

Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741

(1994), permits a proceeding instituted before the Board to

be assigned to an individual member of the Board for a

determination. This proceeding has been assigned to an

individual member of the Board.

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West

1991 & Supp. 1995), a decision of the Board of Veterans'

Appeals granting less than the complete benefit, or benefits,

sought on appeal is appealable to the United States Court of

Veterans Appeals within 120 days from the date of mailing of

notice of the decision, provided that a Notice of

Disagreement concerning an issue which was before the Board

was filed with the agency of original jurisdiction on or

after November 18, 1988. Veterans' Judicial Review Act,

Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The

date which appears on the face of this decision constitutes

the date of mailing and the copy of this decision which you

have received is your notice of the action taken on your

appeal by the Board of Veterans' Appeals.

[RockyA1911]

Hey Vike17,

Thanks and yes and no. Yes it answered that a CUE is handled by a different Appeals team and thanks for that explanation. I guess I am having trouble writing my questions clearly. So, is it possible then when and RVSR is rating a claim and sees a claim of CUE (in my case) for them to defer that issue and then forward it to the Appeals team, then notify the Vet that the issue has been deferred with that reason in the decision letter?

[Berta]

Rocky -I think it would be good to get any acknowledgement of the CUE at all.

Have you gotten the formal recent decision yet on the other claim?

As far as jurisdction over the CUEs- I hope Vike answers too because he might well have a much better take on this-

I feel since it is a VA decision you are alleging CUE on -it would not matter what VA made those decisions and that the CUE should be filed wherever your c file is at presently.

BVA decisions that contain CUES have to be cued at the BVA however.

Vike has a better take on the inner actions of the ROs then I do.

[Vike17]

Rocky,

Maybe I missed something, but did you receive the rating for your recent claims, or did the 1-800 people just tell you had received 30% for the skull loss. If you haven’t received the decision yet, the only thing you are doing now is speculating. If you did receive the rating decision, what did it say as far as why they didn’t award an effective date back to 1976?

Having said that, I’m not sure if you have a CUE or not in regards to your skull loss. Before you can definitely say you have a CUE, you need to find out what the rating criteria was for the skull loss in 1976 and if under those regulations back then the skull fracture was suppose to be indeed rated together with the skull loss due to being the same bodily etoliogy. I say this because, as you even posted, the “compound depressed skull fracture, open head injury not closed” seems to be one in the same. By this I mean the compound skull fracture resulted in the head wound, and this may very well be pyramiding if the two were rated separately. I did notice when I pulled the rating schedule up for musculoskeletal disabilities, it was amended several time since the mid 1970’s. The actual disabilities that were amended, however, aren’t stated. The key to your contentions is to find out what the how the rating schedule handled both of these tow disabilities in 1976. I’m not trying to discourage you or anything, just trying to help you asses your situation. Furthermore, it must also be noted that if indeed the rating schedule from 1976 dictates that the two should be rated separately, then this would be a CUE in reference to the effective date, not the actual rating. The VA would have to assign the correct effective date and do what’s called a staged rating. They would do this by looking back at what was stated in the C&P exam in 1976 and probably use that information to come up with that percentage. As far as the current 30% rating, you’ll need top see what was written in the recent C&P exam as far as skull loss measurements. If the measurements aren’t what you though they should have been, maybe the C&P Doctor dropped the ball and not the RVSR.

Also, I haven’t been able to read your recent post on this subject, and I apologize for that, so when you state that you may have two CUE’s with the second one being from a decision dated April 25, 1977 (about six months after the original rating, I’m not really following something. What did the rating from April, 1977 address i.e. what disabilities/issues? Maybe if you fill me in on this, I can shed some more light on the situation.

When and if you decide to submit a CUE appeal, you only need to submit it the Regional office which has jurisdiction of your C-file now, not when the decision was made. The first CUE, if there is one, may very well take care of the other alleged CUE.

I hope this makes sense.

Vike 17