Cue

[chaselittle]

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

[broncovet]

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 May 8, 2019 by broncovet

[chaselittle]

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

[vetquest]

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. 

[chaselittle]

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 May 10, 2019 by chaselittle
Wrong date

[jbasser]

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. 

[Berta]

"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.