Is this claim CUE worthy

[Wmfromga]

In a nutshell, won an appeal in 14 granting service connection for post military hysterectomy based on in service symptoms and medical service record.  Service connection granted back to 07.   Filed CUE RAMP in June of this year for earlier service connection.  This was based on original denial in 1996 for " no gynecological pathology diagnosed".   I submitted two pieces of medical records that diagnosed displaced uterus.  Am I reaching  in asking for the 30% for displaced uterus with marked disturbances or would hysterectomy become secondary to displaced uterus.  Decision is pending approval now.  Only info sent from Va was a development letter.

Rated Disabilities

Disability	Rating	Decision	Related To	Effective Date
back aches		Not Service Connected
ear infections with wax buildup		Not Service Connected
total abdominal hysterectomy (also claimed as painful menstrual cramps)	50%	Service Connected		09/21/2007
anterior cruciate ligament deficiency , left knee with patellofemoral pain and left knee strain	10%	Service Connected		03/30/1996
foot problems		Not Service Connected
anterior cruciate ligament deficiency right knee with patellofemoral pain and right knee strain (disability severance pay)	10%	Service Connected		03/30/1996
Degenerative disease, right knee	10%	Service Connected		02/28/2007
tendonitis to the right forearm and wrist	10%	Service Connected		03/30/1996
painful menstrual cramps, also claimed as total abdominal hysterectomy		Not Service Connected

Pending Disabilities

Disability	Submitted	Type	Actions
Effective Date Of Compensation For Total Abdominal Hysterectomy (also Claimed As Painful Menstrual Cramps) Was A Clear And Unmistakable Error.	06/19/2018	REP

[Berta]

I have found fault with that site in the past-

They are possibly using a regulation  here  below at their site , but the fact is I have been successful with CUE claims filed within the appeal period and two or three of our vets have done that and were awarded very fast.

There is no regulation to do that , and I made the idea up but when VA makes a Legal Error in a decision ( whether award or denial)  and as crappy as my RO treats me as it is, they have hobnored my CUE requests within the appellate period, first one in 2005, and even did that for a NOD/CUE I wrote for my daughter many years ago- which was resolved in 3 weeks. 

My last CUE award was on a denial I got in March 2015, I filed CUE immediately under 5109 and 38 CFR 4.6 and they awarded April 2015. 

The VAROs do not want valid CUES to go to the BVA. They held on to two CUEs I filed 2003-2004 and by time of my Nehmer award, I asked the Nehmer VARO to adjudicate them- they did- filed 2003-2004 (I think the 2004 one is still open) and they awarded the SMC CUE ( in 2012) and awarded the AO IHD claim but failed to consider the 1151 aspect (2004 CUE)so I have a CUE pending on that....but I also beleive it is still open....

cant wait to get their response.

Do we have any members here who ever filed a Motion under CUE on a BVA decision?

• (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
• (2) either the correct facts were not before the   ( vet help desk link)

Edited December 19, 2018 by Berta

[broncovet]

Berta posted:

Quote

This is a good conversation because we do not talk much about CUE Motions filed against the BVA.It is far better to file them on RO decisions.

I was going to ask, "Why you would say, that, Berta?" but I think you may later have answered that question, as you dont seem to have much experience filing a Cue on a BVA decision.  I have only filed one CUE in my life, it was on a VARO decision, and was quickly denied.  I did not appeal, as I realized my CUE was "not good" as it did not specify a specific regulation violated.  I "assumed" the VA knew its own regulations, and which one was violated.  I failed to understand the burden of proof is on the claimant, not the VA to figure out which regulation was violated.  While I dont like to admit this, I filed this Cue in anger, and, even worse, did a very bad job of thinking it over...I just got mad and sent a 21-4138 I whipped up in 15 minutes.  I failed to take my own advice of the 5 P's and got a bad result on same.  

However, I still think my Cue was valid, but I needed to do a MUCH MUCH better job at research and specifying "WHY" it was CUE.  A big snag for me, was the bit about "showing how it manifestly changed the outcome".  Duh.  Isnt that rather obvious?  The VA never adjuticated my TDIU claim for more than 10 years.  However, to demonstrate that it "manifestly changed the outcome", I needed to prove I was entitled to TDIU.  Well, I have done that now, finally, with a TDIU award.  

I am guessing Berta suggests that its better to Cue a VARO decision, in no small part because she is familiar with that, and less familiar with "Cueing" a Board decision.  

My 2002 Board decision cited "as evidence" a letter where I had mentioned to my VSO that I was "out of work" due to conditions which eventually became SC.  I alleged it was error for VA NOT to adjuticate TDIU.   

I found out, later, that is not correct.  "FAILURE OF THE VA TO ADJUTICATE", is not CUE, because, even after 10 years or even 50 years, the VA can simply say..."Gee, isnt that backlog awful?  We are working on your claim and a decision is expected "soon"."  The VA has no time limit to process a claim, so, they can just ignore it and it becomes "deemed denied". 

Now, a deemed denial seems to fly in the face of 38 CFR 3.103 (due process).  

I dont know which would be precedent..the CAVC cases which decided deemed denials, or 38 CFR 3.103 which seems to prohibit the practice.  ("Every claimant has the right to written notice of the decision made on his or her claim,." see 38 CFR 3.103)

[Navy4life]

CUE's are VERY VERY hard to prove and while a Veteran may think they have a CUE, the law differs.  

[Berta]

Broncovet the BVA does not make many legals errors- but when they do , it is often the CAVC that reverses their denial. We have exanples here of that.

I have written 2 Motions to revise under CUE with the BVA.

One was at the older hadit board I think and the other was for a bipolar vet friend of mine.

He went from "0" NSC to 100% SC for bipolar, with my help and the help of his VA shrink- who I knew well.

He called me to tell me he thought the BVA decision was wrong.

I got a copy from him in the mail and prepared  the Motion for CUE on it ( I posted a template here for that-some time ago) and I have not heard yet how that went. This was some years ago-

he was not good at taking my advice, I had to keep reminding him to get his SMRS,and NAV201 file so maybe the Motyin is still in his desk drawer where the SF 180 I sent to him was for Years before he remembered I said to send it in right away. His NAV 201 file had the icircumstances of his CApts Mass- and I proved to his shrink- how that had to be the first manifestation in service of his bipolar, with no other known entity or pre service diagnosis.His shrink - I should really say his VA psychologist was an excellent doctor but never associated the Capts Mass with his bipolar- and maybe never even knew about it.

The second Motion to revise I am sure was for member Yulookin.

 Yulookin- who was James on the older board- he had a GREAT CUE- and I know he won it but I don't know if at the BVA, due to his Motion for Revision, or at the RO level from BVA on remand.

Broncovet the main difference between a BVA Motion to Revise and a CUE filed at the VARO level is that the BVA has there own legal rendition of CUE- it is really the same as what is in 38 USC 5109 and M21-1MR but the BVA lawyers 'talk' a little differently than the VAROs do-

and anyone can interpret their lingo if they read BVA cases. Besides, unlike our ROs, the BVA can READ.

We have BVA awards here under CUE of BVA decisions, and some that had to go to the CAVC or COVA (in years past) Some have MEGA Retro due the veteran.

 

 

 

[Berta]

Here is one of them:

The veterans filed Motion of CUE on a BVA decision.

The BVA cued themselves: 

In part:

"ORDER The motion for CUE in the April 2017 Board decision that denied effective dates prior to August 21, 2014 for the grant of service connection or a lumbar spine disability, service connection for right and left lower extremity radiculopathy, and service connection for a scar, is granted; the decision is revised to reflect an effective date of October 11, 1952 for the grant of service connection for the lumbar spine disability. An effective date of October 12, 1972, for the award of service connection for scar tissue on the lower back, is granted. An effective date of October 12, 1972, for the award of service connection for left lower extremity radiculopathy is granted. An effective date of August 1, 2010, for the award of service connection for right lower extremity radiculopathy is granted. The motion for CUE in a June 1953 rating decision that denied service connection for a lumbar spine disorder is dismissed as moot. The motion for CUE in a May 1973 rating decision that denied reopening the claim for service connection for a lumbar spine disorder is dismissed as moot."

 

 

[Wmfromga]

Thanks for the responses. @ Navy4life, I'm not sure what I can add to give you more insight.  I filed a CUE for an earlier service connection date, based on the 1996 denial that no gynecological pathology was identified.  I believe it was a CUE based on being diagnosed with a displaced uterus twice. My service medical record is littered with trips to the Infirmary for MULTIPLE menstrual disturbances for the entire 12 years.  The CFR at the time had a rating of 30% for displaced uterus with frequent and continuous menstrual disturbances.  That is the basis for this appealing an earlier service connection.  I hope this makes it a little clearer what my thinking is.   I had an earlier claim successfully reopened and granted CUE on a different body issue.