CUE Understanding

[bigbetty3id]

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

[broncovet]

Berta posted : (on the hadit site)

Quote

 

One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct (if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, and back to BVA scenario ).

Im not getting this.  I recall reading that" failure in the Duty to Assist" is not CUE, probably in part, because its not outcome determinative.  In other words, if the VA fails to send you a DTA letter, or sends one with errors, this does not necessarily mean you would be awarded that particular benefit, that is, it would be "harmless error".  

If that issue was subsequently awarded (later), then I could see how it was outcome determinative.  

Please explain, Berta.  Thanks.  

[Berta]

If the VA fails to send an adequate VCAA letter 0r 5103 waiver, it can damage the claim forever-

If you respond to the VCAA or 5103 with additional evidence or attach copies of what you already sent , and/or list the evidence they have n the letter or waiver, and/or the VARO calls you and confirms the evidence they have-

and then they do not consider the evidence, and if it is Probative, then their denial will be a CUE under 38 CFR4.6.

The was an issue with my BVA remand...as I explained here before and also is probative to my pending CUEs- 

they sent a 5103 for 2 pending claims, denied one and never addressed the evidence for the other claim.

They awarded the first claim within one month due to my CUE on that.

This is from my BVA award:  dated 2009:

 

I had asked for a remand to obtain a  valid VCAA letter:

"Although the appellant is already

entitled to benefits "as if" service connected for the cause

of death under

38 U.S.C.A. § 1151, there are a number of ancillary benefits

to which she would not be entitled absent a finding of actual

service-connected death; hence, there has been no full grant

of the benefit sought.

"The VCAA is not applicable where further assistance would not

aid the appellant in substantiating her claim.  Wensch v.

Principi, 15 Vet App 362 (2001); see

38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide

assistance "if no reasonable possibility exists that such

assistance would aid in substantiating the claim").

  In view

of the Board's favorable decision in this appeal, further

assistance is unnecessary to aid the appellant in

substantiating her claim.

The claimant perfected her appeal with regard to service

connection for the cause of death by filing correspondence

accepted in lieu of a VA Form 9, Appeal to Board of Veterans'

Appeals, in January 2006.  Although this was outside the one

year period from the February 2004 denial, and beyond the 60

day period from issuance of a statement of the case (SOC) in

September 2005, the claimant submitted or caused to be

created additional evidence requiring the issuance of a

supplemental statement of the case (SSOC) in December 2005;

therefore, the time for perfection of the appeal was

extended.  38 C.F.R. § 20.302(b)(2) (2008)._

( this was because of a CUE I filed via VACO as a complaint.I explained that all here long ago.)

 

"The appellant did not perfect her appeal regarding

entitlement to SMC for accrued benefits purposes."  ( My note- that was awarded under a CUE I filed on a 1998 decision)

"FINDINGS OF FACT

 

1.  At the time of his death on October [redacted], 1994, the Veteran

was service connected for Posttraumatic Stress Disorder.

 

2.  The Veteran died in October 1994; the immediate cause of

death was myocardial arrhythmia, due to or as a consequence

of myocardial ischemia, due to or as a consequence of

coronary artery atherosclerosis.

 

3.  The weight of the competent evidence is at least in

relative equipoise on the questions of whether the Veteran

had diabetes during his lifetime that was caused by Agent

Orange exposure during his Vietnam service, and whether that

diabetes caused or contributed substantially or materially in

causing the Veteran's death.

 

 

CONCLUSION OF LAW

 

Resolving reasonable doubt in the appellant's favor, the

criteria for service connection for the cause of the

Veteran's death are met.  38 U.S.C.A. §§ 1310, 5107 (West

2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2008).

 

 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

 

Duties to Notify and Assist

 

The Veterans Claims Assistance Act of 2000 (VCAA) and

implementing regulations impose obligations on VA to provide

claimants with notice and assistance.  38 U.S.C.A. §§ 5102

atherosclerosis. 

 

In August 1992, the Veteran was admitted to the VA Medical

Center (VAMC) in Bath, NY, with a medical history that was

significant for PTSD and hypertension. 

 

The Veteran died on October [redacted], 1994.  His death certificate

reported that his death was as a result of myocardial

arrhythmia, due to or as a consequence of myocardial

ischemia, due to or as a consequence of coronary artery

atherosclerosis.  Multiple cerebral infarcts were listed on

the death certificate as a significant factor contributing

to, but not unrelated to, the cause of death. 

 

In an undated letter, Dr. H.R. wrote that the Veteran's blood

sugars on August 27, 1992 and August 28, 1992 were abnormally

high and should have prompted a glucose tolerance test.

 

In a November 2004 report, Dr. CRB offered the opinion that,

based on findings of multiple high blood sugars, the Veteran

had diabetes many years prior to his death.  He opined that

the Veteran likely had uncontrolled and untreated diabetes

several years prior to his death, and that his undiagnosed

diabetes was a result of his Agent Orange exposure in

Vietnam.  Dr. CRB opined that the Veteran's death was more  (etc etc )

 

"Regarding the November 2008 VA reviewers conclusion that he

was unable to resolve the matters without resorting to mere

speculation, the Board notes that statements from doctors

which are inconclusive as to the origin of a disease cannot

fulfill the nexus requirement.  Warren v. Brown, 6 Vet. App."

(That was based on my immediate rebuttal and the fact that the remand called for a Cardio opinion, not an opinion from a PA.I sent my rebuttal to the PA as wel as the BVA and the PA might ave provided an additional opinion thatsaid the initial exam was too speculative.)

I just put excerpts.Here is where the case is at BVA 2009

 

Decision Date: 04/29/09    Archive Date: 05/07/09

 

DOCKET NO.  05-28 472A )     DATE

      )

      )

 

On appeal from the

Department of Veterans Affairs Regional Office in Buffalo,

New York

 

 

"THE ISSUE

 

Entitlement to service connection for the cause of the

Veteran's death."

--------------------------------------

An improper VCAA or 5103 can doom a claim.It will set the stage for a denial under 38 CFR 4.6  in many respects.

All of the NYS vet reps who would not help me get a proper VCAA letter are now gone.... and even their director was gone,( right away)  after I filed a 43 page complaint with evidence against them.

The director had written to me, because I was asking someone on my POA to help- and he stated my VCAA letter was correct.His removal was announced at some public veteran's meeting  but some big deal state honcho.

As to the BVA decision above The undated Letter from DR H R was dated in the email he sent to me, that VA also had with the letter.........

a very brief opinion that BVA gave weight to.He was a Neurologist who had formerly worked for VA.

It took me 8 months to find him. He was the only doctor who knew what he was doing when my husband was at the Syracuse VAMC.

The other VA cardio- neuro doctors tried to cover up his diagnosis-they actually crossed it out in the med records, (but I was able to uncover what he wrote )and tried to cover up  the  other malpractice at Bath NY VAMC. They failed to do that.(FTCA/1151)

 

 

Edited January 11, 2019 by Berta
to explain better

[Berta]

I loved the "at least" part:

"The weight of the competent evidence is at least in

relative equipoise " you bet- I LOL every time I read that-

there was Considerable more evidence and the BVA only mentioned some of it.

It was well beyond Relative Equipoise....and could have helped others with a similar claim.

I collected all the evidence  I needed before I even contacted Dr Bash and Dr HR.

Dr Bash did the IMO in less then one week after he got my stuff.And then did another one-,as well.

DTA- I applied the Duty to Assist to myself and my evidence.

None of my decisions reveal the VA did that. 

 

 

Edited January 11, 2019 by Berta

[john999]

I guess one thing to do is to file the NOD on your decisions to start appeal process.  Once that is started you can file CUE claims.   My CUE took about 6 years to be finally denied.  You don't want to wait that long if traditional appeal process would be faster.  For additional appeal process to really work you should try and get new evidence of existing disability that was first diagnosed in service like your asthma.  Berta is a CUE wiz and hard to beat.  For lessor beings I would refer to BroncoVet's list of CUE requirements such as the error being "undebatable".  This requirement alone can knock down most CUE claims.  Undebatable in my case was that no one could even raise a question about my CUE.  Any concerns expressed by anyone at the Court of Vet Appeals Hearing about the nature of my  CUE made it  debatable.  That is really a Catch-22.  I had a lawyer with my CUE and we both thought it was slam/dunk just due to the fact that crucial evidence was excluded from my initial claim.  However, due to having to abide by 1973 rules I could not prove beyond any debate that VA did exclude my evidence . Most lawyers are just not equipped to really argue a CUE claim, and they don't want to do it.  The VA has a host of lawyers who do this all the time and they have unlimited resources.   However, if you think you have a good CUE file it.

[Berta]

BTY- the Diabetes Training letter available here under a search is dated 2000.

For my BVA case I had used the 1997 Diabetes Training letter-different in many respects from the 2000 one

because it was consistent with my DMII death claim and the fact the the World Health Org had changed the definition of diabetes- during the time my husband had been undiagnosed and untreated for it.

I mention this because I said I had a lot of evidence for my BVA award in addition to the IMOs- such as my husband's drivers licence, his optometry exams at VA, and even his VA dental records, and also his pre employment physical for VA, and his Performance appraisals from the VA, ....as well as the autopsy.

This was all included in the packet I sent to Dr. Bash.

My point is that before paying lots of money for an IMO or IME-it sure pays to lay out all of your evidence, and attach copies of it to any request from the IMO/IME doctor for everything you have got.

Evidence can come from many sources in addition to VA medical records.

And a  38 CFR 4.6 CUE can rest on evidence from many sources other than the VA, as long as VA had that evidence in their possession, when they commited a 38 CFR 4.6 CUE.

 

[bigbetty3id]

Thank You Berta  and others for all of the good information on this topic. I will use it to the best of my ability.