CUE Understanding

[bigbetty3id]

Would this be considered a CUE, because I am confused on what is a CUE.

[doc25]

6 hours ago, bigbetty3id said:

Would this be considered a CUE, because I am confused on what is a CUE.

A CUE is a clear and unmistakable error that is difficult to prove.

You were serviced-connected 30% back to 2015. That's great news!

You may be able to appeal the effective date to 2004 if your service medical record clearly shows you were, in fact, diagnosed with asthma in-service. 

If, in fact, you were diagnosed in-service with Asthma, you basically, caught the VA lying to deny your claim. There's a slight chance that is a CUE.

Maybe other forum members can correct me if I'm wrong.

[Be advised that if you develop or have developed Sleep Apnea ;it can proximately be due to or a result of your service-connected Asthma/COPD. Sleep Apnea is rated 50% with a documented "medically necessary" CPAP machine, meaning a doctor must state the CPAP machine is "medically necessary". You'll need a sleep study to confirm you have sleep apnea, diagnosis, and a nexus of opinion. This might help better explain what I mean: https://www.hillandponton.com/4204-2/ 

[Carl the Engineer]

I don't know why everyone jumps to CUE right off the bat.  To me, this looks like a simple appeal for the earlier date.  Looks like the rater didn't see and or consider the older evidence.

Did you include this older evidence when you sent in the claim?  Doesn't look like it, but that's OK, you thought the VA would look for everything.  LOL.

Research this site for "topsheeting".  Looks like that could have been what happened here.

Your evidence you have posted looks great for you and an earlier date.  You have a winner...

If they deny the appeal, then I would look into a CUE. 

But, I think this was just someone being lazy...

FWIW,

Hamslice

I could be all wet too, as I have little to no knowledge about the CUE.

 

Edited January 10, 2019 by Hamslice

[broncovet]

The CUE was not evident to me based solely on this decision.    It would take a review of the entire file to determine if there was CUE.  

Its no wonder you are "confused about Cue", and you are not alone.  Probably the only ones who have a great grasp of CUE on this board are Berta and Alex.  Berta has won several CUE's.  My experience with attorneys is they tend to avoid them.  At least, consider filing a CUE only as a last resort.  

     A cue must be pled with specifity.  You need to cite the precise regulation VA violated, which, of course, means you have a good grasp of the regs.  

     A cue must be:

1.  Outcome determinative.

2.  Undebatable.  

3 . Based upon the regs at the time of the error.  

     I think its helpful to view cue as a "standard of review".  For example, the Veteran gets the benefit of the doubt, but NOT relative to CUE.  There is much on Cue here, and, to be successful, you would need to study it in detail.  

[Berta]

As my profile shows I want claims questions posted here -because the question will get more answers.

 

What you posted on my profile here is a Prime Facie CUE! Depending on what you stated and If it was at a ratable level when you were diagnosed with it inservice.

The Cue is within the 2004 decision.

As doc25 said:

"You may be able to appeal the effective date to 2004 if your service medical record clearly shows you were, in fact, diagnosed with asthma in-service. "

They did diagnosed this vet inservice with asthma ! Yippee.

"Dr. opined that I was diagnosed with asthma in 1995 in my service treatment records. " (statement in my profile)

"Doc25 correctly stated "If, in fact, you were diagnosed in-service with Asthma, you basically, caught the VA lying to deny your claim. There's a slight chance that is a CUE.)

• bigbetty3id
•  
•   
•  
• Berta

"IRAQ Burn Pit and IBS

Hello, Berta I was recently service connected for burn pit at 30% for asthma copd dyspnea effective date 2015 but I orginally filed for asthma before I ETS from the military and was denied from the Army. After my ETS I filed with the VA in Oct. 2004 for asthma denied had a C&P Exam 2018 and Dr. opined that I was diagnosed with asthma in 1995 in my service treatment records. I also have non-compensable IBS  so should I fight for a early effective Oct. 2004 as a NOD or appeal effective date for asthma and us the regulations for presumtive for IBS."

 

But based on what you said above,

if the asthma was at a ratable level when the past denials were sent ( meaning it was rated as NSC at least at 10%, )

or should have been , due to estabished medical evidence at time of the ratings ( this is often VERY hard to prove), in my opinion you have the basis for CUE , under 38 CFR 4.6, as well as a 38 CFR 3.156 claim( under part (c) I think but you would have to check those regulations.

This is a CUE right off the bat, under 38 CFR 4.6 on the Nov 2004 decision.

I assume the 2004 denial for asthma never was predicated on any C & P at the time- that means the VA really could not prove, the asthma was not at least at 10% when they denied the claim.

I have won many CUES under 38 CFR 4.6 and have many more pending- templates are here in the CUE forum for that type of CUE.

Was the 2004 decision the only denial for the asthma?

There is a post here called The Power of 38 CFR 4.6-I wrote and will try to find it for you.

 

 

 

[Berta]

https://www.hadit.com/power-38-cfr-4-6/

This was one of my most important posts here and this is the regulation that I bet VA has violated in decisions for  Thousands of veterans over the years.

And probably for their survivors like me, as well. 

My position is ( since I didnt use this reg in the past for some -probably ALL decisions I got up to 2003)and could have- I  whip this reg out in a heart beat now- and have 4 CUEs on that basis of 38 CFR 4.6 as well as other legal errors they have made, pending.

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

EVERY ELEMENT includes  SMRs, IMOs, IMEs, diagnoses, etc etc etc etc etc.

Anything that has probative value to a claim.

Since the VA made legal errors in every single issue I have had since 1995, it is "as likely as not" that they might have made a CUE in any past denial that any one of you here got.

CUE is the first thing I seek when a vet scans and attaches their denials here.

One thing to consider- without a C & P in the 2004 claim, VA cannot speculate on what that rating should have been- but  medical records they had prior to the 2004 denial could put the rating into Fenderson mode.( staged ratings).

The manfested outcome of a valid CUE Means the VA must owe you cash-due to their past erroneous decision.

The worse CUE of all is the one that was never filed.

I think you have a Very good potential to get some retro on this CUE .

It didnt go to 30% at a C & P exam.

Yes- IBS is presumptive to GWVs and you should file and pursue that claim.

 

 

 

[Berta]

I mentioned that if the asthma was not rated at least at 10% in 2004 denial-it might be very hard to prove-but maybe not in your case at all---

I had proven that my dead husband , dead for 24 years now, had two SC disabilities that were never rated, and never even diagnosed by the VA- Diabetes Mellitus and Ischemic heart disease.DMIIAO granted in 2009, AO IHD granted in 2012.

That was a LOT of work on my part and I studied cardiology and Endocrinology.

They never rated the DMII at all and I never appealed for a rating.That award generated about 100 thousand in ancillary benefits, REPS, and Chapter 35 tuition refund, etc so I felt it was not worth my time to appeal for the DMII   rating. The IHD however was properly rated by the VA back to 1988.

I have a 1151 claim on the IHD pending since 2004-still an open issue and filed a CUE on a decison they made that awarded the IHD but under Direct SC, yet this was also a 1151 SC,too. VA OGC Pres Op 08-97 says I should be paid for all 1151 awards that are SC awards as well.