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kanewnut

CUE My latest VA denial for TDIU

Question

I think this is very similar to dawsonatl's Unwarranted TIDU Denial Letter Received. I find myself getting fairly confused trying to figure out if I just keep this to the latest decision or do I add in some of the prior decision because they refer to it in evidence. I have worked on this a little at a time for quite a few days. I didn't want to just copy dawsonatl's but his is a very good example. What I had in bold did stay when I copied my draft. Your thoughts are appreciated. I am pretty sure this will be the first of many CUE's I will be filling.
 


DEPARTMENT OF VETERANS AFFAIRS
CLAIMS INTAKE CENTER
PO BOX 4444
JANESVILLE, WI 53547-4444

Current Date 2019

Dear Sir/Madam:

This is a CUE claim on a decision on 12 July 2019 based on a CUE, clear and unmistakable error, based on 38 CFR 3.105(a).

From the 12 July 2019 decision -
Letter from Vocation Rehabilitation and Employment Division show that your primary physician stated you are unable to work and that your service connected conditions. Did the rater mean to say “ that your service connected conditions are permanent in nature.”
From the 12 July 2019 decision - 
We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment. 38 CFR 3.102 The rating examiner failed to apply this section of Federal law because two differing opinions exist in equipoise and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.3 The rating examiner failed to apply this section of Federal law because as stated above, two differing opinions exist in equipoise  and by regulation and law are to be decided in favor of the Veteran. 38 CFR 4.2 The rating examiner failed to apply this section of Federal law because they failed to consider the finding by my primary physician that confirms that I am incapable of maintaining employment due to my service connected disabilities. M21-1 The rating examiner applied their own medical conclusions when despite my primary physician stating that I am unable to work, the VA examiner decided that I am capable of working.

In the 12 July 2019 decision the rating examiner stated “the evidence of record does not show that you terminated your employment due to your service connected disabilities.” This is irrelevant. See M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU) IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
voluntary withdrawal from the labor market.


In EVIDENCE you listed the Rating Decision, dated  May 9, 2019
In the May 9, 2019 rating decision the rating examiner stated “Your back condition shows that it may limit you from performing physical labor but does not sedentary employment.”  38 CFR 4.6 The rating examiner failed to apply this section of Federal law because they failed to consider the facts in the record from my VA Form 21-8940’s showing that   
I performed sedentary employment from September 1985, when I left the Army, until June 2000 when I became too disabled to perform sedentary employment. My VA Form 21-8940’s show employment as a computer programmer. This is sedentary employment. This is a fact of the record.

This decision would be manifestly different if 38 CFR had been followed correctly and the correct rating decision had been made.
These errors in application of 38 CFR have manifested a detrimental outcome to me by being denied individual unemployability that I am entitled to because of the symptoms that I suffer from daily due to my service connected disabilities that prevent me from any employment.
Please correct these errors that will subsequently approve me for individual unemployability and apply the earliest effective date possible.

I have included the relevant M21 sections that you have failed to follow.
I have included relevant U.S. Court of Appeals decisions.

Respectfully submitted,

My Name
My SSA

Attachment #1 12 July 2019 Decision
Attachment #2 9 May 2019 Decision
Attachment #3 VR&E decision letter
Attachment #4 SSDI Decision
Attachment #5 M21-1 III.iv.5.A.3.e
Attachment #6 M21-1 IV.ii.2.F.4.c
Attachment #7 VA Form 21-8940

38 CFR § 3.105 - Revision of decisions.
§ 3.105 Revision of decisions.
The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.
(a)
(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended.
(i) Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied.
(ii) Effective date of reversed or revised decisions. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.
(iii) Record to be reviewed. Review for clear and unmistakable error in a prior final decision of an agency of original jurisdiction must be based on the evidentiary record and the law that existed when that decision was made. The duty to assist in § 3.159 does not apply to requests for revision based on clear and unmistakable error.
(iv) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the decision being challenged, there has been a change in the interpretation of the statute or regulation.
(v) Limitation on Applicability. Decisions of an agency of original jurisdiction on issues that have been decided on appeal by the Board or a court of competent jurisdiction are not subject to revision under this subsection.
(vi) Duty to assist not applicable. For examples of situations that are not clear and unmistakable error see 38 CFR 20.1403(d).
(vii) Filing Requirements - (A) General. A request for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the requesting party or that party's authorized representative. The request must include the name of the claimant; the name of the requesting party if other than the claimant; the applicable Department of Veterans Affairs file number; and the date of the decision to which the request relates. If the applicable decision involved more than one issue, the request must identify the specific issue, or issues, to which the request pertains.
(B) Specific allegations required. The request must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence.

38 CFR § 3.102 Reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

38 CFR § 4.2 - Interpretation of examination reports.
Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

38 CFR § 4.3 - Resolution of reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See § 3.102 of this chapter.

38 CFR § 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 § 4.16 - Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service- connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

M21-1, Part III, Subpart iv, Chapter 5, Section A - Principles of Reviewing Evidence and Decision Making

Topic 3 Evaluating Medical Evidence

III.iv.5.A.3.e.  Basis for Rejecting Medical Evidence
     
The rating activity may not rely upon its own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.
Reference:  For more information on the basis for rejecting medical evidence, see
Shipwash v. Brown, 8 Vet.App. 218 (1995), and
Colvin v. Derwinski, Vet.App. 175 (1991).

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.2.j.  When to Obtain VR&E Records in IU Claims
 

Obtain and evaluate any already-existing records of Vocational Rehabilitation and Employment Service (VR&E) consultation
when the evidence indicates that the Veteran underwent VR&E consultation sometime in the past related to a prior VR&E claim, such as (but not limited to)
a Veteran’s report of participation in VR&E
VR&E folder type shown in the Beneficiary Identification and Records Locator Subsystem (BIRLS)
VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, included in the claims folder, and/or
Chapter 31 payments shown in Share
when the evidence of record is insufficient to award IU, and
without regard to the period of time that has passed since the VR&E consultation occurred and records were created.
The VR&E records may document the Veteran’s participation in a training program, or
show that training was not feasible or was unsuccessful. 
Notes: 
The entire Counseling/Evaluation/Rehabilitation (CER) folder is not necessary to adjudicate IU claims that are processed at the RO.  If adjudicating a claim for IU, and the Veteran has an existing VR&E record, request that VR&E provide a completed VA Form 28-1902b, Counseling Record – Narrative Report, in lieu of the entire CER folder.  VA Form 28-1902b contains the necessary information concerning the impact of the Veteran’s SC and NSC conditions on employability.
If the CER folder has evidentiary value that pertains to the pending claim and there is a need to scan the contents of the folder, send a photocopy of the folder to the scanning vendor and retain the original CER folder and its contents at the RO.
Decision review operations centers (DROCs) must request that VR&E provide the entire CER folder when adjudicating Board of Veterans’ Appeals (BVA) remands, as BVA is able to contact the RO directly to request upload of the entire CER folder into the Veterans Benefits Management System (VBMS).
ROs are not required to request VR&E records when a Veteran fails to return the VA Form 21-8940.
References:  For more information on
the RO procedure for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.j
DROC procedures for obtaining VR&E records, see M21-1, Part III, Subpart iii, 1.C.2.k, and
shipping requirements, see M21-1, Part III, Subpart ii, 1.F.1.b.  

M21-1, Part IV, Subpart ii, Chapter 2, Section F - Compensation Based on Individual Unemployability (IU)
IV.ii.2.F.4.c. Determining the Effect of SC Disabilities on Employability
 

Determine whether the severity of the SC disabilities precludes the Veteran from securing or following substantially gainful employment. 
 
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
age
NSC disabilities
injuries occurring after military service
availability of work, or
voluntary withdrawal from the labor market.
Reference:  For more information on the discussion to include in the rating decision, see M21-1, Part IV, Subpart ii, 2.F.4.p.


M21-1, Part IX, Subpart i, Chapter 1, Section B - Memorandum Vocational Rehabilitation Ratings
IX.i.1.B.3.e.  Reevaluation on the Basis of Medical Infeasibility
If the Vocational Rehabilitation Panel determines temporary or permanent medical infeasibility for rehabilitation of a Veteran rated less than 100-percent disabled, VR&E will refer the case with a statement of the facts to the rating activity for reevaluation. 
 

Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
Article ID: 554400000063199
Decision Assessment Document
Murincsak v. Derwinski, Apr 24, 1992, 2 Vet.App. 277 (1992)
U.S. Court of Appeals for Veterans Claims (Court)

What the case is about:

The Court, noting that under 38 U.S.C. 5107(a) the VA's duty to assist specifically includes requesting information from other Federal departments or agencies and that the Social Security Administration (SSA), under 38 U.S.C. 5106, must "provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto," held that VA violated its duty to assist the veteran by not acquiring the SSA decision and supporting medical records, as the VARO had actual notice that the veteran was receiving SSA disability benefits based upon his unemployability status.  

The Court noted that although the SSA's decision regarding appellant's unemployability is not controlling for VA determinations, it is certainly "pertinent" to the present claim, as the evidence was relevant to the determination of the veteran's ability to secure and follow a substantially gainful occupation under 38 C.F.R. 4.16(c). 

The Court also indicated that the Secretary's duty to assist includes obtaining this evidence from the SSA, and giving it appropriate consideration and weight in its determination to award or deny appellant a total disability rating based on unemployability.  At a minimum, the decision of the administrative law judge at the SSA "is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor." 


Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
Article ID: 554400000081585
Decision Assessment Document
Roberson v. Principi, May 29, 2001, 251 F. 3d 1378 (2001)
U.S. Court of Appeals for the Federal Circuit 

What the case is about:

The Court held that once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU). 

IV.ii.2.F.4.e.  Considering Occupational History in IU Claims
A Veteran’s occupational history is not determinative of the outcome of a claim for IU unless the Veteran is currently gainfully employed.  However, occupational history is a factor that must be weighed in decision making.  In weighing the relevance of occupational history in claims for IU, consider the factors below.
When a Veteran is currently working or the evidence shows the Veteran is capable of working but unemployed, determine whether the ability to sustain employment is marginal as discussed at M21-1, Part IV, Subpart ii, 2.F.1.d and e.
Consider the difference between unemployment and unemployability as discussed at M21-1, Part IV, Subpart ii, 2.F.1.b.
Voluntary retirement is not necessarily determinative of the outcome of an IU decision.  The underlying impact of the Veteran’s disabilities on the discontinuation of work is the relevant determination. 
As noted in M21-1, Part IV, Subpart ii, 2.F.2.i, SSA decisions are not determinative of the outcome of IU decisions.  However, a Veteran’s application for and/or receipt of SSA disability benefits is a factor to weigh in decision making. 
IU may be granted on a temporary basis as noted in M21-1, Part IV, Subpart ii, 2.F.4.g.
When a Veteran is self-employed, follow the procedures at M21-1, Part IV, Subpart ii, 2.F.3.
Reference:  For more information on weighing evidence in rating decisions, see M21-1, Part III, Subpart iv, 5.A.

A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. 3.340(a). 


IV.ii.2.F.2.a.  General Evidence Requirements in IU Claims
 
A decision concerning entitlement to an IU evaluation in accordance with 38 CFR 3.340, 38 CFR 3.341(a), and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the
current severity of the SC disability(ies) that the Veteran states and/or the evidence indicates prevent(s) substantially gainful employment
the impact of SC disability(ies) upon employability, and
employment status. 
The rating activity must review all evidence and assign corresponding weight as directed at M21-1, Part III, Subpart iv, 5.A, including but not limited to evidence concerning the Veteran’s 
current employment status
past employment history, and
functional impairment arising from SC disabilities as shown by
examinations
Department of Veterans Affairs (VA) or private medical evidence, and
lay evidence.
Forward a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, to the Veteran if a request for IU is
expressly raised by the Veteran, or
reasonably raised by the evidence of record.

2003-04-09 VA FORM 21-8940 Redacted for Hadit.pdf 2007-12-19 VA FORM 21-8940 Redacted for Hadit.pdf 2009-07-09 VA FORM 21-8940 Redacted for Hadit.pdf

Edited by kanewnut
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4 hours ago, Berta said:

It should be explained in this:

it is a good cite in that it states VRE denial is a reason to consider in awarding TDIU but i don't read anything more than that in it. I will look at it again.

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I respecfully dissent with this argument for CUE. You can never introduce the §3.102 argument nor can you dispute how the evidence is weighed. Read Russell v. Derwinski  (1992) to better understand CUE . Also read this:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a)General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b)Record to be reviewed -

(1)General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2)Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c)Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d)Examples of situations that are not clear and unmistakable error -

(1)Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2)Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3)Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e)Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

 Thus, citing to §4.6 or §3.102 is futile.

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The VBM has copyright nuances-I scanned the page and put it here  only for the M21-1 references and citations.

The M21-1 citation on those other citations is all he needs.

If you are interested in purchasing this manual , for  $ 213.00 , go to:

https://store.lexisnexis.com/products/veterans-benefits-manual-skuusSku12734

If they know you at NVLSP, they might give you the advocates discount.I get it but forget how much  it is.

NVLSP- National Veterans Legal Service Program- they won the Beverly Nehmer Agent Orange Class Action case.

And other class actions.They are a  Pro Bono law firm.

Personally I would probably only have cited only 38 CFR 4.6

This vet has a letter from VOC Rehab- saying that program  is not feasable for him due to his SCs, or words to that affect, and also this vet gets SSDI solely for his SCs.

I think it is a Beautiful CUE. Could still be shorter...however. I learned a lot about CUE by reading the VBMs for the past 28 years- their first NVLSP VBM publication was in 1991.

But I am not here as I mentioned before,  to argue with what is or isn't a CUE claim- 

this type of argument came up a few weeks ago----

I am tired of having to support my own advice.

because my advice is based on VA case law and my own CUE winners.And those vets here who succeeded in CUE because of my advice.

My first CUE was in 1997, written for my daughter. They immediately reversed. VA Edu Dept forgot to consider her 7 years of military service under Chapter 35. They had her DD 214 so all I needed to do was to send them the same regulation that was on her Chap 35 APP them 

 

(and I am willing to read all of the past posts in every thread-something many here don't do-with that unwillingness to read the entire threads,  they could get a great job with the ROs )

All he really needs is to cite 38 CFR 4.6- maybe throw in the COVA/ CAVC decisions  citations but I am pleased to see Anyone here taking the time to really study VA case law as kanewnut did.

When I won my last CUE the Director called to apologise to me that they had not granted under Benefit of doubt, on the denied decision. 

BOD kicks right in when a CUE is awarded.

BUT I will take a little  vacation from hadit and you "experts" can figure it all out.

 

 

 

 

 

 

 

 

 

 

Edited by Berta
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Berta-

With the new AMA, this is a tempest in a teapot. If you are unhappy with the 7/12/2019 decision, you file a NOD at the BVA on a 10182. You type up a brief and explain why all of this is incorrect based on law. The VLJ rules in your favor and you win. Why try to fight with a Motion to Revise? That's like fighting with one hand and a leg tied behind your back. If you wanted to, you could file a 20-0996 and clear this up in a Higher Level of Review HLR lane and even ask for an informal telephone conference. The choice of CUE as the litigation tool of choice here escapes me. But that is not the end of the matter.

The problem is the M 21 citations. If (and when) you lose at the AOJ, you go on appeal to the BVA. Trust me. The VARO pukes are going to fight like a six-toed cat on this. The VLJs do not use-nor do they recognize- the M 21 because it is not a regulation or statute. It is an "adjudication tool" -and nothing more- from a legal standpoint in their eyes. Your CUE has to be exquisitely on point as an error of case or controversy ( law or facts). As such, you need to use precedential cites, CFR or USC.

M21-1 III.iv.5.A.3.e is nothing more than Colvin v. Derwinski (1991) stating that a Board must base a decision on the medical facts and not substitute their own opinion on the subject. If you are relying on this M 21 cite to say there's CUE, you are essentially saying the evidence of TDIU could be weighed both ways-i.e. creating the equipoise needed to achieve the benefit of the doubt. In a motion to revise, you cannot claim failure of the benefit of the doubt nor can you claim the evidence wasn't weighed correctly.

If you are relying on M21-1 IV.ii.2.F.4.c as another predicate for a CUE, again, that dog won't hunt in my mind. This is a manual cite that asks the rater to make a decision on whether the Veteran qualifies for total disability due to individual unemployment (TDIU). Again, you are claiming CUE based solely on the rater citing "voluntary withdrawal from the labor market". This again falls into reweighing the facts. You cannot second guess a  rater's determination that you were employable or unemployable based on just that one metric. Remember, the decision said " We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment." 

That is the VA's CUE escape hatch. The claim is winnable and Kanunut can keep the  earliest effective date he can wrangle on appeal but it would have to be done as a regular AMA appeal. He can enter more new and relevant evidence by going to a private IMO outfit and getting an independent writeup. Then he has "equipoise"- one denial from VA and one new, well-reasoned rebuttal by a subject matter expert on employability.  If you go this route, you'd submit it in the Supplemental lane on a 20-0995 using Hart v. Mansfield (2007). There's no way VA can legally go out and get another c&p opinion and you win. No Motions to Revise. No long battles.

Clear cut CUEs can be won but why fight the hard way? This is a brand new post-AMA decision and if you lost at the BVA with no new IMO, you can still make a u turn and come back to the supplemental lane with a new IMO. This also preserves the filing date for the IU. Going to the CAVC will eventually be only Ex Writs and CUE appeals. 

And that's all I'm gonna say about that.

 

capture-was-here-e1535647298505.jpg

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1 hour ago, asknod said:

Why try to fight with a Motion to Revise?

Berta straightened me out about the Motion to Revise being for a BVA decision, which this is not. 

 

1 hour ago, asknod said:

If you wanted to, you could file a 20-0996 and clear this up in a Higher Level of Review HLR lane

This has already been done and was promptly denied.

 

1 hour ago, asknod said:

Remember, the decision said " We took this evidence into consideration, but other evidence shows your disabilities do not prevent you from all employment." 

The rest of it states "Additionally, the evidence of record does not show that you terminated your employment due to your service connected disabilities."

I certainly appreciate all the help you give veterans. I read all you post and have been working back through all of the Asknod.org website posts. But I must respectfully disagree with some of your posts. For instance - 

There's something we are not seeing here. If he was was 70% solely for TDIU, this would be a slam dunk. My suspicion is that Dawsonatl has a combined rating of 70% with no single rating over 40%. That would be the only rational explanation for the denial. No one in the Ratings/Appeals section could make that basic an error - even with the screwed up M 21 manual.

I am sorry but they do, and it appears they do it all the time.

This is from Dawsonatl - 

UPDATE JULY 25, 2019: A little over 3 weeks of sending off my CUE claim I found out today that my claim for 100% TDIU was..APPROVED! A very satisfying and relieving day for me. To all those who provided their insights and input, especially Berta and notably GeekySquid; I can't thank you enough and I appreciate all the advice that you took time out of your day to give.

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