CUE Potential

[RBrogen]

Hello Everyone,

I wanted to post this draft CUE motion here to get your opinions on strength of case, format and any other comments.  It has been redacted to remove my social.

General Overview:
I am service connected since March 2019 for neck, bilateral knees and ankles among other things.  The knees are the condition I am primarily focusing on at this time.

I had 3 full physical medical exams with no pre-existing conditions noted.  The first exam was when I joined the Florida Army National Guard September 16, 1985.  The second exam was when I transitioned to the regular Army on April 29, 1987  and the third exam was when I went to Airborne physical on March 13, 1989.  I injured my both knees during Airborne training, especially my left knee when I landed wrong on a jump due to wind.  I did NOT go to sick call or report it because there was no way I wanted to be recycled or told I couldn't come back ... which is a common theme with these types of training programs.  I also had an injury documented in STR for right knee MCL strain a few months before I got out.  I left the service because a few months after injuring my knee, I blew my back up and had a slipped disc and was discharged on July 3, 1991.

Not knowing anything about the VA, the DAV rep I had said file for your back so I did and was granted 20% for Low back syndrome as soon as I got out.  In 1999, I filed a claim for increase in low back syndrome as well as bilateral knee condition.  I had arthroscopic surgery on both knees and multiple instances of reports from doctors referring to the injury as service connected.  I was denied service connection for both knees as pre-existing condition on left knee and no chronicity on right knee.  I believe the rater completely ignored 38 U.S.C. 1111 as well as 38 CFR 4.6 in ignoring a preponderance of evidence supporting my claim.  I believe had the rater applied the laws correctly as well as reviewed the evidence available to him at the time, it would have manifestly changed the decision.

I'm attaching my information in pdf format to make it easier to read.  Than you all in advance for taking the time to look it over.

 

 

 

 

 

Cue Motion DRAFT Aug 29 2019_RedactedSmall.pdf

Edited September 4, 2019 by RBrogen

[GeekySquid]

27 minutes ago, RBrogen said:

I will send my claim letter as you have seen with new edits along with supporting evidence exhibits certified mail to the Boston RO which should be sufficient to initiate the claim for CUE under 38 USC 5109.

read this page very carefully

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

[RBrogen]

3 minutes ago, GeekySquid said:

read this page very carefully

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

I believe that my claim does meet the 4 requirements (in my opinion):

• (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The final decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
• (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
• (3) the error is "undebatable;" and
• (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

[Berta]

I do too-

I think the vet's help desk needs a new desk- full of better help-they, or maybe it is one vet,  do not identify themselves as to their expertise. I think they are a few lawyers who practice at the BVA.Or maybe it is just some lawyer wannabee. This is my personal opinion and I never depend on this site.

A "closed " claim is a misnomer.So is their word "final".

Most of my past CUEs for others here as well as for me and my veteran daughter, were filed in my case- within days of getting a decision. The claim was still in the appeal period and thus not closed but still "open."

Most of those decisions were award letters .Those claims were far from being "final."

Some time ago I wrote an article called filing  a GCY claim( Go CUE yourself VA claim )for decisions that a recent and contain legal errors. Some here have certainly succeeded with that advice.Actually I cant think of any member who used that tactic, and who gave us evidence that they had a valid CUE, has ever lost the CUE.

Also you can file CUE on the same decision many times. My 1998 de

cision produced lots of CUEs but like a dope I believed what my so called since -demoted vet rep said- He said you cannot file a NOD because this is a 1151 award.They are different than regular claims.

Years later at my daughter's insistence ( and she was right) I reopened my DIC claim. I had a terrible time with the Buffalo RO who refused at first to even re open the claim. I was also in Military School ( AMU) and wanted to continue my all A average. Being a female civilian in a Military school had a few skirmishes at first- but that's OK.And the VA paid for it all under Chap 35.I had 3 IMos that supported the claim that they refused to read but I chose to be patient and wait for a BVA award. I wanted to get out of that VARO. I kept think my vet rep was wrong so I filed CUEs on the 1998 decision.

The BVA can read and they not only awarded the claim but also agreed with me that my VCAA letter was in violation of the VCAA and rendered that violation as moot due to their award.

However I could have filed CUE under 38 CFR 4.6 then but didnt.I had those 2other CUEs pending there already on the 1998 decision and it took 8-9 years for them to be awarded, I was set for BVA transfer Finally, and happy with that,but then Nehmer 2010 occurred and the Nehmer VARO awarded those CUEs within a few weeks. No wonder my RO hates me. In spite of them, and deficient vet reps, and horrendous posthumous C & P exams, I won all of my claims. I had too. My husband, hours before his very unexpected death, made me promise to see his 1151 claim  and PTSD claim through to the end.He also said to get everything they owed him and me as his widow ,if he died. I sure honored that promise and the other promise He made me make.

They could have awarded his pending claims in his lifetime.

We often have had widows with CUE questions but they must realize that CUEs, as accrued benefits,-the only way a survivor can file a CUE, -rest solely on medical evidence in VA's possession at time of death.

 

 

 

 

 

 

Edited September 9, 2019 by Berta

[GeekySquid]

58 minutes ago, RBrogen said:

I believe that my claim does

 

read letter d below.

https://www.law.cornell.edu/uscode/text/38/5109A

38 U.S. Code § 5109A. Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)

[Vync]

@RBrogen I like the way you combined 4.2 and 4.6 into a single contested topic. Those regs are so similar that it is possible to roll the attack together and just stipulate what happened. Sure beats having to make a separate section for each of them and repeating the evidence and similar argument for both. I'm thinking of also rolling together 4.40 and 4.45 (i.e. DeLuca and Hicks related opinions) on my CUE because both were not applied and they are very similar.

@Berta I listened to a SVR podcast where a lawyer (I think it was Carrie Weletz) said a CUE was --not-- a one shot deal. I have heard other folks elsewhere it was a one shot attempt.

[Vync]

@RBrogen I was curious about one the next to the last paragraph on the first page about "common knowledge". We all know that is true, but it sounds more like an opinion. Worried the VA might try to discount it under "(4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong."