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Cue


chaselittle

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Greetings all. Can anyone chime in with any infro. About CUE in this situation i have? I file an original claim for migraines in 1997. It was denied nd became final. I try to reopen it in 2000 and that was denied and become final. I try again to reopen in 2006 and was denied but i appeal it nd 2013 BVA remand to reopen. I finally was awarded sc 30% and effective date 2006. I appeal that decision in order to get an earlier effective date nd a higher rating. I request a BVA video hearing yet to be schedule. I found errors in 1997 nd 2004 decision letters. Should i file a cue while having or before i have the video hearing? Thank you for any thoughts.   SEMPER FI

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Based on what you posted, you dont need to file CUE.  Why?  Because you appealed the effective date within a year, so you dont NEED to meet the onerous CUE standard of review.  With your appeal, you get the benefit of the doubt (BOD), while if you file a cue, you give up that valuable resource, BOD.  Why give up BOD if unnecessary?  

If you really want to make your claim more difficult and harder, try translating into Chinese and ask the BVA to translate it back to English again.  (Which is sort of what your are doing.  You see, "only VA" gets to interpret their regulations because of the Auer defence, aka Chevron Deference. 

Fortuantely, Kizor vs Wilkie, at the US Supreme Court, may improve this for Veterans if the Supremes ruling is favorable.  

Edited by broncovet (see edit history)
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On 5/7/2019 at 8:48 PM, broncovet said:

Based on what you posted, you dont need to file CUE.  Why?  Because you appealed the effective date within a year, so you dont NEED to meet the onerous CUE standard of review.  With your appeal, you get the benefit of the doubt (BOD), while if you file a cue, you give up that valuable resource, BOD.  Why give up BOD if unnecessary?  

If you really want to make your claim more difficult and harder, try translating into Chinese and ask the BVA to translate it back to English again.  (Which is sort of what your are doing.  You see, "only VA" gets to interpret their regulations because of the Auer defence, aka Chevron Deference. 

Fortuantely, Kizor vs Wilkie, at the US Supreme Court, may improve this for Veterans if the Supremes ruling is favorable.  

Thank you!  SEMPER FI

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chaselittle, you have to be careful with CUE and already final claims.  The VA has the onerous response of the best information available at the time of decision.  I filed for a physical disability but it was awarded as a mental disability.  I thought this would be a great CUE as any reasonable mind would have declared that my disability was physical, including the fact I was discharged due to physical disability.  The VA came back stating that they made this decision as using the best information that they had at the time. 

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The reason why I ask about cue because 2013 BVA wrote that records included in 2004 denial was in service treatment records nd diagnosis and several 1995 records from private nd VA providers. BVA claim that the RO used those records in deciding the claim. But 2004  letter did not list those records as evidence 

Edited by chaselittle
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Look at your original denial letter closely. Why was it denied? If anywhere within the denial it stated service department records were unavailable and the claim was denied and went final and the claim was later awarded based on any information listed in the service department record that the VA has received since the denial then you may be able to go back to tour original date without filing a CUE claim. The basis would be based on Title 38 cfr 3.156c. 

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"BVA claim that the RO used those records in deciding the claim. But 2004  letter did not list those records as evidence "

Can you give us your BVA Docket # and Citation #?

I sure agree with jbasser, that this might sure  be a 3.156 issue, and not a CUE.

38 CFR 3.156 and CUE  are different types of issues, but  both can bring the same results, for a better EED.

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3 hours ago, Berta said:

"BVA claim that the RO used those records in deciding the claim. But 2004  letter did not list those records as evidence "

Can you give us your BVA Docket # and Citation #?

I sure agree with jbasser, that this might sure  be a 3.156 issue, and not a CUE.

38 CFR 3.156 and CUE  are different types of issues, but  both can bring the same results, for a better EED.

Berta this is 2013 BVA remand  DOCKET NO. 07-38 965    i don't have a citation # on the remand. Page 4 last paragraph.  I also sending a partial of 2004 letter refering to the reason nd evidence used

20190511_101955.jpg

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Yes- they sall seem to be your cases and it will take me some time to read them all.

"The Veteran filed his original application for service connection for headaches in June 1997. The RO initially denied the claim in July 1997 and, in so doing, found that the Veteran had not established an etiological link between his claimed headaches and service."

This is from the 2013 decision:

https://www.va.gov/vetapp13/files1/1303960.txt

Can you scan and attach here that 1997 decision? As to their rationale and the Evidence list?

And the rating sheet- I have one from 1998 that I won many CUEs on. Have another CUE filed on it as well.

It might contain a CUE.  It is VA's job to obtain your SMRs, and maybe they didnt until 2006:

I try again to reopen in 2006 and was denied but i appeal it nd 2013 BVA remand to reopen. I finally was awarded sc 30% and effective date 2006"

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2 hours ago, Berta said:

Yes- they sall seem to be your cases and it will take me some time to read them all.

"The Veteran filed his original application for service connection for headaches in June 1997. The RO initially denied the claim in July 1997 and, in so doing, found that the Veteran had not established an etiological link between his claimed headaches and service."

This is from the 2013 decision:

https://www.va.gov/vetapp13/files1/1303960.txt

Can you scan and attach here that 1997 decision? As to their rationale and the Evidence list?

And the rating sheet- I have one from 1998 that I won many CUEs on. Have another CUE filed on it as well.

It might contain a CUE.  It is VA's job to obtain your SMRs, and maybe they didnt until 2006:

I try again to reopen in 2006 and was denied but i appeal it nd 2013 BVA remand to reopen. I finally was awarded sc 30% and effective date 2006"

I were going through a divorce nd 1997 original letter is lost on my end but SOC 4/3/2018 state the reason for denial   " The issue was previously denied because,  Although there was treatment during service for headaches, there was no evidence of a chronic disability shown during your military service"   Berta in service records of 1981 showed by the BVA 2013 remand did mentioned that vet get such sevare headaches twice a year. It seem that there are two rational apply. Not chronic nd no etiological. My mind tells me that the two are different nd one is wrong for they use

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I file the original claim in june 1997 nd RO denied it July 1997.  I believe i were 10% left foot nd 10% right foot.  I would need help from someone to scan infro onto here. 2000 on back i do not have paperwork.  I can find out if records were transfer to one VA office to the other

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Request your cfile and it should have the 1997 information.

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If the 1997 rating sheet does not list a NSC rating at least at 10% for the migraines, it would not be a CUE.

You would need that decision, if you did get a NSC rating at least at 10% for the migraines.

NSC ratings can become SC ratings in time, and basis for valid CUEs in many cases, if for thesame disability, but without a percentage or a % at "0" NSC, that means their decision at that time was not to your detriment, and not raising to level of CUE.

 

 

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43 minutes ago, Berta said:

If the 1997 rating sheet does not list a NSC rating at least at 10% for the migraines, it would not be a CUE.

You would need that decision, if you did get a NSC rating at least at 10% for the migraines.

NSC ratings can become SC ratings in time, and basis for valid CUEs in many cases, if for thesame disability, but without a percentage or a % at "0" NSC, that means their decision at that time was not to your detriment, and not raising to level of CUE.

 

 

No rating for SC or NSC in 1997 just a denial

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