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

[RBrogen]

1 minute ago, GeekySquid said:

at this time, or at least as of yesterday, there is no designated "CUE" form. There is a generic statement in one of instructions that says '...use for all claims", but CUE is different than an claim. IT is an attack.

I have seen some posts that RO's have pushed back on not using different forms for CUE but they all seem to be overcome by stating that there is NO DESIGNATED form for CUE.

I suspect if you add in the EZ you will cause that same confusion but I can't provide proof of that suspicion. I would let them say "no use form XXX" and then demand where that form is officially designated as the proper form for a CUE.

So I am understanding that my CUE letter and supporting evidence will suffice for the initiation of the claim then ... no need to file the full claim since it is really not a regular claim but a motion to correct an earlier decision on a claim.

[Berta]

Oh Geez, this is what a CUE broohaha started over-GBArmy gave the best advice on that matter.

This is not a Motion for CUE- that is BVA lingo-the RO does not speak BVA legalize- unlike the BVA some of them can hardly even read-

This is a claim of CUE ( Clear and Unmistakable Error) under auspices of 38 USC 5109A, in a Regional office decision dated...,etc ,

.38 USC , not 38 CFR.

There is no specific form - I always just sent them a letter starting with the above.

Also if filing within the Appellate period .prior to filing a timely NOD I always put Attention to on the address label and in the letter and then the initials of the last person who decided the claim.Their initials are found in the alphanumeric on the right hand top of the decision ( unless the VA got wise to me and does not put that alphanumeric on their ROdecisions anymore.)

Someone said here a month ago to use a 21-526 EZ-for CUEs I have no idea if they were right, my CUes have had  to be filed as accrued benefits-under those new forms.for survivors .

 

 

 

Edited September 9, 2019 by Berta

[RBrogen]

1 minute ago, Berta said:

Oh Geez, this is what a CUE broohaha started over-GBArmy gave the best advice on that matter.

This is not a Motion for CUE- that is BVA lingo-the RO does not speak BVA legalize)

This is a claim of CUE ( Clear and Unmistakable Error) under auspices of 38 USC 5109, in a Regional office decision....38 .USC , not CFR

 

 

Thanks @Berta!  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.

[Berta]

GREAT! Thanks to everyone here who helped so much!!!!! You are all  CUE EXPERTS in my book!

[GeekySquid]

20 minutes ago, RBrogen said:

So I am understanding that my CUE letter and supporting evidence will suffice for the initiation of the claim then ... no need to file the full claim since it is really not a regular claim but a motion to correct an earlier decision on a claim.

to date that is correct

[GeekySquid]

23 minutes ago, Berta said:

Oh Geez, this is what a CUE broohaha started over

bingo!