Mods, and long time members

[Berta]

Can you please read this thread and comment on the CUE?

I am afraid when something gets into CUE or DIC or AO forums, many here do not read those posts and might be able to add something important to them-or better yet Learn something from them.

 

Edited May 23, 2019 by Berta

[broncovet]

The attachment (especially the service records) were amazingly difficult to read.  

I was able to read a "decision date" of April, 2019.  

Apparently Marine Leo ALSO filed a HLR, in addition to the Cue.  

     My problem with filing a CUE on a decision WITHIN the appeal period is that I can not see the benefit in it.  Of course, CUE's can be filed anytime, but a "regular" appeal can only be filed within a year of the decision.  

    And, as we know, the CUE "Standard of review" is higher than a "regular" appeal, in part, because the Veteran must relinquish the benefit of the doubt in a Cue motion.  I view filing a CUE motion, in the appeal period, as "giving up" some protections that are unnecessary for the Veteran to "give up".  That is, I can not see any advantage to "giving up" the BOD as either a Cue motion or a standard appeal can result in the same benefits, BUT, the CUE has an onerous standard of review the Veteran must meet.  

    For those reasons, I would not file a CUE, but instead, file a "regular appeal". 

    All this said, I understand Berta has had great results filing a cue motion within the one year appeal period..and getting benefits.  And, I wont dispute that.  There is a dramatic difference in the skill level needed to file a cue vs filing a regular appeal.  

Berta has that skill, but few of the rest of us do.   Alex is even reluctant to file a cue..if its in the appeal period.  

 

[Berta]

I never file Motions, that is for BVA CUEs.The Motion template is here somewhere.

I would but I dont expect to ever have to.

In my opinion, if a veteran or their survivor finds a CUE in a recent decision they get, they would be foolish not to get it resolved immediately-unless they are willing to get on the hamster wheel.

The BVA is not going to correct it, if no CUE was filed.It will continue to harm the veteran's claim.

Maybe the CAVC would remand it. ...many years down the road.

This great CUE was written by the veteran's spouse.It pays to get the spouse involved in your VA issues.

Even our kids. My daughter kept on me years ago while she was still in the Military to re open my DIC claim. 

She was right- it was the most important claim I ever filed.

She mentioned things about Dad that I had not picked up on.....

The claim was for Diabetes Mellitius due to AO. She said 'Mom they didnt  even diagnose and treat his heart disease and you proved he had heart disease that caused his death..So it is as likely as not they didnt diagnose and treat his diabetes.'

She was right.Lots of work , and it all paid off, and he finally had Peace with Honor.

 

 

 

[broncovet]

So, Berta, if I understand your reasoning, you file a cue instead of a regular appeal because it is processed faster than a regular appeal.  This may well be true..Im not sure, personally.  I have only filed one CUE which was denied.  (I dont remember how long it took).  

How quickly a claim is resolved IS a huge issue.  Huge.  I was just unaware that, the VARO somehow gave priority processing on CUE vs a regular appeal.  (Maybe because they have fewer CUE's filed?)  

This is the exact reason I opted into RAMP (now called AMA).  I figured it would take 5 years for my Board appeal, and my Ramp was completed in about 6 months.  (The ramp was denied, however, it WAS completed faster..much faster).

I hypothesized if you filed Cue on a pending claim (one within the appeal period), then the VA would have an incentive to just wait on it until your appeal ran out, then deny the CUE.  

[Berta]

"So, Berta, if I understand your reasoning, you file a cue instead of a regular appeal because it is processed faster than a regular appeal." That is not what I mean at all.

If you file a valid CUE immediately after receiving a decision,, that chances are very great that you will get a fast resolve- that is my experience-and 3 other vets here who did this-  and

I have been on my RO s--t list for decades.

So it is not a case of being put in front of the crowd-

"How quickly a claim is resolved IS a huge issue.  Huge.  I was just unaware that, the VARO somehow gave priority processing on CUE vs a regular appeal. " (Maybe because they have fewer CUE's filed?)  

I dont consider it as Priority at all.It is because  they not want claimants Valid CUES to go to the BVA, as a CUE within the appeal period is truly a "frontal attack" ( BVA's words not mine.)

 

"This is the exact reason I opted into RAMP (now called AMA).  I figured it would take 5 years for my Board appeal, and my Ramp was completed in about 6 months.  (The ramp was denied, however, it WAS completed faster..much faster).

"I hypothesized if you filed Cue on a pending claim (one within the appeal period), then the VA would have an incentive to just wait on it until your appeal ran out, then deny the CUE.  "

If vet files a Valid CUE on a decision they recently made, they like me, wont probably have to even file a NOD.

The key word is "VALID" ,legally proper, with detrimental result due to the VALID CUE..

Unless they deny the CUE, But a claimant  can file a CUE on a CUE denial decision if it contains a CUE, and then be prepared to file a NOD.I filed a CUE on an award of CUE because the CUE award had the wrong EED.

If  a vet or claimant like me files a CUE on an older decision, as I did - many filed on a 1998 award letter, years after the fact, that means the rater who made the original CUE is probably retired already or might even work in a different part of the VA, out of the RO claims process department. They can sit on a CUE like that-

My initial AO IHD claim was denied in 2012, for the most ridiculous reason, I mentioned it here before and they turned on the scathing  CUE I filed  and in a few weeks they  awarded  -I often forget about that initial AO IHD CUE, and the Nehmer decision since that CUE was resolved, awarded my other two CUES.

I wonder how many other widows got the same ridiculous denial BS I did, and simply walked away.It was so bad that I enjoyed preparing the CUE and pointing out to the individual who wrote the denial, how utterly incompetent he/she was. I an sure  I filed a IRIS complaint too- --it was awful.

If you send Attention to ,in the appeal year period, and use the Alpha part of any alphanumeric, it will go back to the rater who last had the claim, and most likely made the error.Human nature tells me that this will force a rater to do it right, sooner than later because they sure dont want IRIS complaints like a few of mine were,(complaints that go to VA Central as well as your RO) that reflect on their specific employees , whose decisions are identified with the Alpha ,in a negative way.

CUE is actually human error, by someone who cannot read, or who does want to read, who does not comprehend basic VA case law, or evidence, or an IMO , or who has been ordered by their director Not to read enough that would award the claim, just read the stuff (like those lousy C & P exams,)that will deny the claim and get if off their desks fast.

A claimant then has chances to seek CUE in the denial, or file NOD, and then rebutt and correct errors to the SOC, SSOC, SSSocs, but time is passing along by the day,week and month, their deadlines, not ours, and finally when they get your 1-9 that sits around waiting if you have a POA for them to do a 646, which is almost always a useless waste of time, and then you wait for the claim to be transferred to the BVA. In the case of my 2003- 2004 CUEs, my I-9 was still at my VARO when Nehmer awarded 2 two cues and the AO IHD claim in  2012.

My 646 on my BVA case sat with my POA for 8 months.He did nothing to advance the claim, but this is a chance for a POA to make a strong statement, yet very few do that. He was a POA in an office in the VARO building and had not a clue on what my claim was about.He stated only a brief statement that he agreed with my contentions.That is what they all probably say on 646s.

There are very few mentions at BVA of 646s but that happens when a VSO or vet rep takes the time to make a very strong statement of support that the BVA will consider.

The key word is a VALID CUE- legally perfect- and with a solid detrimental outcome, at least at or  over 10% , solely due to the CUE.

And the whole system has changed so much that someone told me CUEs are being handled much differently than in the past-under the Moderization Act.

I dont know how true that is yet. It is a fact that more and more vets and their survivors are filing CUEs, as evident at the BVA web site.It would make sense 

And that does not  reveal how many CUEs are actually  won at the RO level.

It might seem like priority treatment and actually  it should be priority- because a probative legal error ,never cued , that the VA made, will follow the claim ad finitum-months, years, maybe even decades,and  the vet might expire before the claim is properly resolved.

 VA is not the enemy of veterans- Time is.

 

 

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Edited May 23, 2019 by Berta

[broncovet]

Im having a difficult time understanding this.  Its probably me. 

What is a "646"?  Are you referring to 38 CFR 4.6?  

   Im "all over" speeding up my benefits.  I have been fighting with VA for no less than 17 years, since 2002.  If I can expect a faster result with CUE, then, of course, if there is a valid cue, Im for it.  

   Frankly, I did not know that a Cue was sent back to the original rating specialist..tho that "may" make sense.  While the VA no longer signs decisions individually, they can be linked, as you posted, by the letters on the decision.  

    I have had about 14 VARO decisions, and, to my knowledge, I never got the same rating specialst twice.  Coincidence?  Remember, most of my decisions were made in the same VARO...there was no such thing as a National Work Que (NWQ).  

    Going back to the differences between filing a CUE and an appeal:

CUE advantages:

    1.  You indicated, if the cue is valid and skillfully written, there should be no need to file a nod.  

     2.  A Cue could resolve the Veterans issue faster than an appeal. 

     3.  A Cue can be filed anytime, where an appeal MUST be filed within 1 year.   

 

CUE disadvantages:

    1.  You give up the benefit of the doub:  If the evidence is in equipose, a Cue claim fails, where it would theoretically suceed with an appeal.  

    2.  Some Veterans may not have to skills to write a valid CUE.  It takes much less skill to fill out and mail a simple NOD form.    To file a successful CUE, you would need to have a very good working knowledge of 38 CFR's.  However, to file an appeal, you simply need to "check the right boxes" in the NOD form, sign it and send it in.  

      A valid CUE, and a NOD (both filed in the appeal period) would likely result with the same end result.  The disability percentages should be the same, and so should the effective date.  

     As Berta pointed out, a Veteran can appeal the denial of either a cue or an appeal denial.  And, you can file cue on a cue.  

      Did I miss anything? 

[Berta]

A valid CUE filed on a decision a claimant just received- like the new member's wife  here-who did an excellent job-

that can  hopefuly be  addressed to  Attn: and then the ALPHA part of the decision on the upper right hand side,

if the VARO puts that code on th decision letter-

can lead to a very fast reversal of their decision.

How I learned a lot about CUE ( and could have used it on every decisions I have received, yet I responded to some SOC, SSOCs that resolved those issues instead-which was OK but added time to the resolve at the RO level)

is because I started reading multiple BVA CUE decisions and learned as much from their denials as from their awards. The  annual VBM as well had plenty of info.

This is a 646

https://www.va.gov/vaforms/va/pdf/VA646.pdf

The BVA has only addressed them, if the rep made an good argument ,that advanced the claim.

The POAs filing out the form usually choose the first Box to check.

Yes a CUE can be filed at any time- there are some Mega retro awards in the CUE forum, going back decades.

Everything a vet or survivor needs to know on CUE is in our CUE forum.

But the BVA web site is an excellent resouce for CUE decisions:

https://www.index.va.gov/search/va/bva_search.jsp?QT=CUE&EW=&AT=&ET=&RPP=10&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

The search feature I used was CUE

719 CUE decisions so far 2019

2,624     in 2018

20,505 in 2004-------I have no idea why so many vets filed CUE around the years preceding the decision... Shreddergate maybe?

There are 53,371 CUE decisions from 1992 to the present at the BVA,out of 1,135055 appeals decied since 1992.

I feel I have explained CUE as best as I could here and advise anyone who feels they have  a potential CUE,  to read over some of the BVA decisions....and the CUE forum.

 

 

 

 

Edited May 24, 2019 by Berta
added more