Jump to content
  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    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 ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

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

    employment 2.jpeg

    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

  • 0
Sign in to follow this  
bigbetty3id

CUE Understanding

Question

Recommended Posts

  • 0
6 hours ago, bigbetty3id said:

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

001.jpg

002.jpg

003.jpg

004.jpg

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/ 

Share this post


Link to post
Share on other sites
  • 0

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 by Hamslice

Share this post


Link to post
Share on other sites
  • 0

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.  

Share this post


Link to post
Share on other sites
  • 0

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.)

"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.

 

 

 

Share this post


Link to post
Share on other sites
  • 0

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.

 

 

 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Our picks

    • I filed a claim in october of 2018 for ptsd and TDIU, long story short I tried to do everything myself and didn't have the proper diagnosis so I was service connected for anxiety based on having a medical marijuana card diagnosis for anxiety but the rating was 30% and I much worse off then that. So I obtained a referral from the va to a fancy psychiatrist from the university of north florida's behavior health department and was diagnosed with ptsd, bi polar 1 and panic disorder. I used this new medical evidence as my supplemental claim evidence and filed it April 16, 2019 after receiving my letter March 20, 2019. My claim is now at Pending Decision Approval with an estimated completion date of july 2, 2019 which is super fast from all I have read. My question is, Am I going to be awarded tdiu with the evidence I submitted if they adjust me up to 70% which I think it will . Or if they award 70% for ptsd on this new supplemental claim will i have to re-apply for tdiu again? Or would that all be considered in the final review of the entire claim? Thanks for any help.

      1-22 1BCT 4th I.D. "Regulars by God"
      • 1 reply
    • how do you figure when they will start paying me at the 100% rate, housebound..?  They will start the pay before they finish the back pay?  That would be nice !!
    • Hello:

      If you receive a hysterectomy while you are filing for disability through the VA, will it still count?

      I am out of the military.

      Thank you
      • 1 reply
    • Help needed bad  Male MST
      Is there anything for a man who's been diagnosed with PTSD secondary to MST. I see all this information and it's primarily speaking as if it only happened to females. If anybody has any advice for a man who suffers from this condition please let me know I'm not alone. Also let me know of any coping skills you've learned as I have lived the last 25-30 years of my life in full flight from reality. 
      • 9 replies
    • Occasionally it becomes necessary for HadIt.com to come to the community to help raise funds. This is one of those occasions.

      A couple of things to keep in mind

      Financial contributions are never required, but always appreciated.


      NOT tax deductible, HadIt.com is NOT a non profit and any contribution you make is just a gift and cannot be deducted on your taxes.


      If you prefer to give through a subscription, you may subscribe here the rates are $5 per month or $50 per year and gives you an ad free experience on the forums.



      Thank you for your support!
      • 3 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines