CUE Understanding

[bigbetty3id]

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

[FormerMember]

Unfortunately, if you file a CUE on the decision in 2004, if the DM II evidence was not of record at the time, you will lose. It would probably be to your advantage to post this in the CUE area to get more exposure. Also read up on CUE to help you better understand it. https://asknod.org/?s=+quintessential+elements

[Berta]

Who is filing CUE here on DMII???

The DMII stuff is from my BVA award-

The VA never disagnosed or treated my husband for DMII.

It was an additional malpractice issue that my daughter, a veteran, urged me to consider.

I re- opened the DIC claim and my RO refused to re-open, at first but then  ignored my evidence so I did not mind waiting for a BVA decision. I was at American Military University  much of that time anyhow, getting my degree.

The BVA awarded.

1151 DIC from 1994 to 2009, then Direct SC DIC due to DMII,contributing substantially to death-2009.FTCA settlement Offset refund.

 

 

The DMII stuffwas how I was trying to explain  some other points here.

Maybe I missed something in this thread-

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

Big Betty 3ID - you are Very welcome!

 

 

 

 

 

Edited January 12, 2019 by Berta

[FormerMember]

Scratch the DM II and substitute CUE in the 2004 claim based on evidence introduced now (currently). Sorry Berta but I was trying to refer back to what Doc 25 and Hamslice were alluding to in the first page. Old timer's disease is my excuse. Anything that occurred in 2004 must be a stand alone CUE claim. It can't be appended to a current appeal of a decision or use a more recent decision to show error in 2004. 

When you have error in a pending claim or appeal,  a CUE motion is not for application. A NOD or VA 9 is. CUE can only be a motion to revise an earlier decision that is final. I make a habit out of calling up the rater and asking him what was going through his feeble mind when s/he screwed up. Sometimes they issue a ratings correction. Sometimes they don't. If you really want to screw up a pending appeal, tell them you're CUEing it. I guarantee it'll take a year to straighten out. VA loves to play Semantic Rope-a-dope with you. 

CUE is almost as incomprehensible as SMC but then, I reckon VA made it that way on purpose. I'm hoping the SCOTUS tosses Chevron/Auer Deference in Kisor v Wilkie and reads a regulation as it is written. If the Secretary continues to write ambiguous regulations, we're doomed to an eternity of Auer.

It's ever so difficult to determine CUE given one decision to look at. Bronco is spot on that you need the entire file to sort it out. Fly out here and visit me, Berta. I'll let you look at VBMS and really get a feel for VA shenanigans-in real time. We have plenty of room. Ask Loyal. For some silly reason, Cupcake insisted we build something that looks like a Best Western that you can see from outer space.

[broncovet]

I have learned the hard way to never dispute Berta.  However, I am "baffled" by the decision that that she quoted which states "relative equipose" in a Cue decision...since "equipose" is not a concept that applies to CUE, it must be undebatable.  Source:

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

In part:  

Quote

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

• (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 adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
• (3) the error is "undebatable;" and
• (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

 

[Berta]

Alex is completely correct here:

"Anything that occurred in 2004 must be a stand alone CUE claim. It can't be appended to a current appeal of a decision or use a more recent decision to show error in 2004. "

And even prior to 2004 (as my 1998 decision contained many CUEs),th biggest one being their failure to consider SMC. That CUE waas filed in 2003 and not sent to the BVA, the Nehmer VARO awarded it in 2012.

My only evidence was the decision, the rating sheet , copy of 38 USC 1114, or M21-1MR1 excerpt on that ,and a brief excerpt from NVLSP's VBM, that stated the SMC mandate.

I shouldn't have posted parts of my BVA award- that was not a CUE claim.

I think my point regarded Duty to assist and Relative Equipoise and the VCAA  ( a.k.a. 5103 waiver now) that was mentioned in this thread.

When the BVA gets a case, in which the VCAA was violated in any way, (which is usually always detriment to the claimant) they will remand the claim because an improper VCAA letter ( 5103 waiver)  is a violation of their DTA regulations.

They did not remand my claim, as I requested, for the VCAA violation.

The evidence they had from me mitigated the VCAA error.

I mentioned here before that one day I was at the VAMC and noticed a car I didnt recognize at the State Vet rep office so I went in and here was one of their reps from a different locale , filing in for them.

I asked him to pull up my files there and he did, and then I asked him to read my VCAA letter- He was stunned and said 'this is ridiculous', and I said yeah I know. Then he saw the copy of the State Director's letter to me, saying it was a valid VCAA letter.

He seemed stunned by it all and said he was from their Corning Office and didnt know what he could do for me. By then I had sent the OGC my complaint. I had realised they were in bed with the VARO (per my Double DRO review SOC)and that claim involved a large retro,etc etc etc.

My next submission of evidence to OAWB I hope to finish today( 4 more pdfs re: what my Initial OA complaint is about, ---emails /letters to/ from OGC , IG etc but also

the first submission of some of my decisions, from the Buffalo VA. They already have the 1998 1151 award. They need to see the C & P exams.