Read First- CUE advice

[Berta]

Tbird has an excellent article here ,right at the top of the CUE forum, and there are other articles on CUE here as well-

but unfortunately many here with CUE questions never read the info here first.

CUE , per the BVA is a Collateral Attack on a VA decision. ROs do not want to be legally attacked.If your CUE succeeds it reflects on 

legal errors that well paid and well trained raters should Not make.And if you appeal a CUE denial- you better have your ducks in a row.

That  also goes for filing a Motion under CUE for Revision of a BVA decision.

This vet waited a long time to get his 6 CUEs denied months ago at the BVA

"Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

A claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, one who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).”

The veteran, repped by the American Legion, filed  6 separate CUE claims and they were all denied."

 

"Collateral Attack"- that means exactly what it says - You have to have your ducks in a row and Well Armed with knowledge of what a CUE is and that can only be gained by reading the extensve info here at hadit.

Also we cannot opine about whether you have had a CUE in the past without- in most cases, seeing their (VA's) actual decision being cued.

I learned as much about these "collateral attacks" from reading BVA denials  of CUE  as I have  learned from their awards of CUE.

We can tell when someone here  has not read the info available here for many types of claims AO, DIC, Accrued, Nehmer,  CUE, etc etc.

This info has already taken us time to prepare and post.

We cannot read it for you.

CUEs have grown in numbers- many at the BVA these days, and some of them succeed.Because the veteran or their lawyer or survivor took the time to understand what is and isn't a Valid CUE.

 

 

 

 

 

 

[Carmand47]

 

 

I need some guidance on how to properly draft a "CUE" letter

I respectfully request the VA to call CUE, (Clear and Unmistakable Error) under provisions of USC 1509 On part of 27Apr04 decision from the Louisville, Kentucky VARO and to correct the error of percentage assignment.

On page 3, #2 of this decision letter It references as so “evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis currently evaluated as 10% disabling We granted an increase evaluation of your service-connected neck condition DC 5241 because the evidence shows this condition has worsen. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness had your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Previously to this decision dated 27apr04 a decision letter dated 22May01 already awarded me an increase to 20%. I was originally awarded a rating of 10% when I applied 0n 20may99.

On the 22May01 decision letter, page 2 Under Decision #1 “Service connection for status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis is granted with an evaluation of 20% effective 20May99.” Page#3 Under Analysis para 1-4 “direct service connection an evaluation of 20% is assigned under diagnostic code 5293 from 22May99 the date the claim was received. An evaluation of 20% is granted for recurring attacks of moderate intervertebral disc syndrome a higher valuation of 30% (at that time) is not warranted unless there is severe limitation of motion of the cervical spine. The  exam shows decreased range of motion the X Ray show mild to moderate degenerative changes of the areas of the cervical spine that were fused C5- C6 and the veteran has ongoing tingling and burning of her hands and arms along with occasional pain therefore 20% evaluation is warranted for this disability at this time.  

 In conclusion. I originally submitted a claim for VA benefits for status post discectomy and interior fusion cervical spine at C5-C6 with arthritis 20May99 it was rated under the DC 5293 (for that time frame). It was rated at 10%. So, I applied for an increase Based on a rating decision 22May01 VA awarded me a 20% increase.  On 30Jan03 with the representation from The Kentucky Center for Veterans Affairs I filed for another increase because my disabilities had gotten worse, so I filed a disability claim for the following disabilities:

·         Gynecological difficulties to include damaged sphincter, damage from a torn rectal vagina fistula and episiotomy repair.

·         migraine headaches.

·         bladder problems.

·         personal trauma- physical abuse and emotional abuse and depression secondary to this trauma.

·         left hand injury.

·         ganglion cyst left hand and scar.

·         arthritis in neck & spine, right hip, right knee, left heel and left ankle.

·         spinal fusion no longer able to work.   

 

*NOTE per 38cfr 4.71a SPINE DC 5241 forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees Shows that I met the requirement for 30 % increase but did not receive it.

The VA’s failure to notate the previous percentage rating properly manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 30Jan03 It would have increased my   rating for my Status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage in my VA disability compensation pay.

 Please help me with my letter. 

 

[Berta]

You are using the wrong citation- it should state This is a CUE under auspices of CUE, 38 USC, 5109A.

It is too long. However it is also a very good attempt to rectify this

This is all you need:

add 'I have enclosed copies of the following decisions:'

 

"On page 3, #2 of this decision letter It references as so “evaluation of status post discectomy and anterior fusion, cervical spine at C5-C6 with arthritis currently evaluated as 10% disabling We granted an increase evaluation of your service-connected neck condition DC 5241 because the evidence shows this condition has worsen. Your treatment records from VAMC in Louisville show recurrent complaints of neck pain and stiffness had your 30Jul03 VA compensation exam you had complaints of daily neck pain with radiation of this pain into both arms and hands the examiner noted a muscle spasm in C5-C6 area your flexion was decreased To 30 degrees and extensions decrease to 20 degrees all movements was associated with pain.”

Put date of that decision.

Previously to this decision dated 27apr04 a decision letter dated 22May01 already awarded me an increase to 20%. I was originally awarded a rating of 10% when I applied 0n 20may99."

(Add ,'the diagnostic code in this decision ( put date) and enclose)reveals what the proper rating should have been , based on my medical evidence.( specify that evidence and enclose it again)

"NOTE per 38cfr 4.71a SPINE DC 5241 forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees Shows that I met the requirement for 30 % increase but did not receive it."

(Make sure you are using the rating schedule in place at time of the error.It does not hurt to even send then a print out from the VA Schedule of Ratings here, to support the DC code-I hope our link to VA SRD is up to date)

"The VA’s failure to notate the previous percentage rating properly manifestly altered the outcome of the decisions referred to above.  If the proper rate increase percentage was approved on the decision letter dated 30Jan03 It would have increased my   rating for my Status post discectomy and anterior fusion cervical spine at C5-C6 with arthritis from 20% to 30% and more for my overall rating. This resulted in a shortage in my VA disability compensation pay."

You do have the right approach- I said it was too long- because the focus must solely be on this one specific issue.

What I cannot determine is what the date is of the decision you believe they erred in is-

" On 30Jan03 with the representation from The Kentucky Center for Veterans Affairs I filed for another increase because my disabilities had gotten worse, so I filed a disability claim for the following disabilities:'"

I thought that was the date you got a decision letter as well, that I think is the decision you feel is in error.......

What does all  that have to do with the CUE?   as far as a new claim?

Can you clarify what decision contained the CUE?

The main reason that CUEs are denied is because of the wording and half of these raters in my opinion, are barely literate-

Others will also opine and help-----

You did very well on this so far !!! 

That is why CUEs if possible should be short and to the point legally-and not combined with any other issues-

 

 

 

 

[Berta]

Maybe you received the 30 Jan 03 decision and then filed a new claim the same day?

Is that 03  to be 2003?  What is the status of the new claims you filed in 2003?

 

 

[Berta]

One more point- it is difficult to opine on a CUE without seeing the actual decision that you feel contained the CUE.

My suggestion above might be way off base----

I hope you can scan and attach that decision here.(Cover C file#,name prior to scanning it)

CUEs cannot be a medical argument, however a CUE can involve the wrong diagnostic code to a veteran's detriment.

I suggest you add 38 CFR 4.6 to your CUE,  right at the beginning of it- and state they they failed to apply this regulation to your claim because they did not consider all of your probative medical evidence.

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. 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.

This is the way  to open the door of CUE, that involves medical evidence and ratings.