READ FIRST if you feel you have a potential CUE claim

[Berta]

There is considerable info here in this forum on CUE-it is not really a ‘claim’ -

it is a frontal attack on a recent or past VA decision, whether award or denial.

 

And explained in many of the articles I have already written-no sense in re- writing what is already here-

This is where you need to go if you think you have had a CUE in any past or recent VA decision.

https://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiv/ch02/M21-1MRIII_iv_2_SecB.docx

The M21- MR link has info as well on 3.156 claims too.

A legal error means just that. It could mean the improper diagnostic code, used to your detriment, based on the medical evidence, an improper EED based on established medical evidence , in VA’s possession at time of alleged CUE, or often a violation of 38 CFR 4.6 because VA failed to consider Probative evidence, that you can prove they had.Such as ignoring a probative IMO/IME or ignoring any other type of evidence they had ,that fully  advanced your claim.

If they mention the IMO/IME in the opinion, that means they did not ignore it- but probably didn't read it well, or, as in my case, over my last CUE, they did list my evidence ( 4 pages  -opinion from OGC VACO cardio doctor) but never mentioned it in the decision, They reversed immediately when I filed CUE the next day. The award letter is dated 3 weeks after the denial.

A CUE on an improper EED is the same- scenario- the VA failed to consider evidence they had that would warrant a proper EED, of a ratable condition (at least at ten percent, at time of the alleged CUE decision.

I could write a book on CUE, because in the past 25 years VA made just about every conceivable error on every decision I got. But what is the point.

Everything you need to know is here.

My initial denial for AO IHD ,I have brought  up to the Nehmer Philadelphia   VARO-as well as within info I gave to the VA OIG Counsel who handles their section on audits.

I filed CUE and mailed it the next day.(2012) Within 3 weeks they reversed and adjudicated the claim.

It was brief,(the CUE)  one page, I made a point on how ridiculous the denial was and stated the regulation they broke- 38 CRF 4.6 and mentioned this to the Director of the Philadelphia VARO in a recent letter,to her ( copy sent to the IG) with my concerns of how many other widows of AO exposed IHD veterans got a denial as ridiculous as that one….and they might have never even appealed or had a vet rep who didn’t advise them properly to CUE it.(AO IHD death claim)

I might have posted that CUE here-

Examples of all sorts of CUEs are here, as well as templates…… and they should never become so involved that they become convoluted.

Try to get it all on one page. If it is a CUE on a recent decision, address the CUE as Attention to: and put the alphanumeric there.That alpha contains the initials of the last person who handled your decision.

If you need more info and still believe you have a valid CUE and that it is worth pursuing, you can also purchase the VBM by NVLSP , where they have considerable info on CUE and actually on everything any claimant  needs to know about the claims process. Chapter 14 of the 2018 VBM-2019 holds 59 pages of info as well as numerous other references to CUE in the VBM index.

And if you go to the BVA web site, under decisions, you can search for CUE and why they awarded or why they denied.I learned plenty on CUEs by seeing them in action at the BVA and also the CAVC.

 

NVLSP is a pro bono law firm who won the Nehmer Class Action Case.

Do not be easily discouraged if you find you have a valid CUE-if anyone here says you do not have a basis for CUE, ask them to attach their most recent CUE award.

 

 

 

 

 

[Berta]

Bumping this up ,to make this point, I made here somewhere but don't have time to find it-

If you feel you definitely have a valid CUE , in a recent decision, a CUE that you know conforms to what a CUE is, by reading the many articles here on CUE-

I suggest to definitely file the CUE prior to filing a NOD.  ASAP. Make your calendar when the NOD deadline gets close  and file it ,if you have had no input on the CUE ,but but give them a few months (one or two)to see if they will handle the CUE claim.My  point is I have experienced ( others here as well)  very fast decision on CUEs the VA made, when the CUE claim was filed right away and produced a good argument ,as to the legal error (s) they committed and also as to how their CUE was detrimental to you- and that can stave off, in many cases, the very need for a NOD,if their CUE decision satisfies what the claim was for.

As you know the VA seeks CUE right away during the Higher Level Review- but we cannot really cont on that so if they do commit CUE in a recent decision, whip your CUE out to them ASAP!

There was no good reason for my RO to hold my SMC CUE for 8 years.When my AO IHD death claim went to a different VARO, hen it got awarded.

The problem was my RO tried to make up a regulation to deny,  plus did ll sorts of thiing to make me think it was being worked on, like at one point they said it was with a 'specialist'-I think the 'specialist ' was the same guy who replaces their burned out light bulbs  and/or fills  their toilet tissue dispensers.

I cannot imagine the crap their extensive review of my C file ( in progress) will reveal. I still have their ludicrous initial decisions, and my C file, unlike my dead  husband's C file , is quite large and all about many battles over 2 decades, that they ultimately failed to win- but it also reveals how the VA can and will victimize us widows.They don't discriminate- they put many of you veterans through this utter senseless BS as well.

 

[Vync]

@Berta this is great information!

Just curious, but after the renovation of the claims process, wouldn't filing a CUE on a recent decision within the appeal window be pretty much the same thing as requesting HLR? The HLR form includes a section for you to indicate if you believe an error occurred. Wouldn't these both be handled by the same department?

 

[Berta]

Yes- or course, You are right Vync-yes the ssme department should handle how a vet responds to that question and I think the vet should respond by using the CUE regulations, as to how the committed the error.

I wrote to former Sec Shulkin and his liaison called me from DC and told me that he did use my suggestions and one is the fact that the decisions should be searched for CUE before they are mailed out.I didnt realize this was a question on the HRL form. Those regs and the other rreg I had changed is here somewhere.

Secretary Shulkin has written a book- it isn't out yet but I pre ordered it-

https://www.cnn.com/2019/10/18/politics/david-shulkin-book-veterans-affairs/index.html

In part :

"Former Veterans Affairs Secretary David Shulkin says in a new book he was shocked by an apparent culture of backstabbing in Washington and specifically his own department -- and that veterans are paying the price, The Washington Post reported Friday."

I think people think I am nuts but I am convinced that VA has a "deep state "affecting practically every dept. in the VA.On the older vet boards , pre internet, we called it the 'old boys club' but now it is the 'old boys and girls' club- those who are determined to keep the status quo and the power they have over veterans ( and VA employees as well)-

Most of the best individuals I have ever met work at or did work at the VA. Their hard work and dedication is compromised by the people employed there at every level, who could care less about vets. Being around VA myself for decades, at least 4 or 5 Secretary's did respond to letters I had sent them on various issues. Sec Wilkie did not respond but I am glad I wrote to him anyhow re: AO and HBP

I feel that Travelgate thing that caused Sec Shulkin to get canned , was a set up-because he was doing a lot for vets as far as their medical care went and was in tune I feel to what the average veteran claimant goes through with the VA.

https://www.cnn.com/2019/10/18/politics/david-shulkin-book-veterans-affairs/index.html

 

"Former Veterans Affairs Secretary David Shulkin says in a new book he was shocked by an apparent culture of backstabbing in Washington and specifically his own department -- and that veterans are paying the price, The Washington Post reported Friday."

and 

"The VA was once thought to be the only part of the federal government that was above politics," Shulkin writes in his book, titled, "It Shouldn't Be This Hard to Serve Your Country," according to the Post. But "the environment in Washington had grown so toxic, chaotic and subversive that it became impossible for me to accomplish the important work that our veterans need and deserve."

https://www.cnn.com/2019/10/18/politics/david-shulkin-book-veterans-affairs/index.html

I do believe it was entirely his own department ( the VA-which got worse after they became a Cabinet department years ago ,that he bases his book on. I do believe there is a deep state in VHA as well as VBA because although VA has tried t do many positive things, they seem to take two steps backward for every step forward.

This Press Release I got this AM shows what I mean:

""

VA announces new process for responding to Privacy Act requests 10/21/2019 10:02 AM EDT   The U.S. Department of Veterans Affairs (VA) implemented a new process Oct. 1 for responding to Privacy Act requests from claimants received by the Veterans Benefits Administration (VBA) for access to their claims files."   But when I clicked on that link above, the VA link does not tell us what the new process will be.

 

 

 

 

[Willy P]

Berta,

I've been told that a CUE exists if the rater establishes "no nexus" for service connection, but the C&P examiner gives a favorable opinion ("at least as likely as not", in my case).  I can't find anything to suggest that the rater actually violated a policy, though.  Do you have any insight to this?

[Berta]

Hypothetical questions involving CUE are often hard to answer-

But if this a real situation-meaning  you have a decision in which the rater says "no nexus" but the examiner gives a favorable opinion, ---then that could cause a denial, if the nexus has not been established.

An examiner could say the veterans anxiety disorder is 'as likely as not" due to his/her service.And even give a good rationale for that, based on a stressor the veteran had told the examiner of-

But if the veteran has not established proof of an inservice nexus ( a stressor in this case), the examiner's opinion has little weight.

If the veteran is denied, then provides more info and can prove his/her stressor, than the examiner's opinion would have lots of weight.

Having a positive exam is only one part of a claim. The nexus factor controls everything else.

If this is your case, and the VA has ample proof of your stressor, or whatever nexus you needed for the C & P exam disability, but VA  ignored it, than that would potentially be a good CUE claim.

Don't expect VA to search your SMRs for any nexus.

Combat vets almost always have enough medals, ribbons etc, to prove they were in a stressful situation-and VA under the 2010 PTSD regulations would often concede their stressor without asking for more proof.

Non combatants have other ways to prove a stressor or whatever nexus they have-

Some nexuses however are Very hard to prove and that is where a buddy statement can help.