CUE Motion

[Jangs1963]

So in April 2019 my atty. filed a CUE Motion. Today I contact the 800# and was told my CUE Motion is in the file but no action is being taken because it is on the wrong form. Does a CUE Motion override the need to file a form? The person on the other end said my atty. needs to fill out the V9 and submit that. Is that correct? Any help would be greatly appreciated. Thank you. 

[broncovet]

Need more information.  Is this a CUE motion to a board decision, SCL, HLR, or regular VARO decision?  

Berta has done well with CUE, but Im unaware of her seeking CUE AFTER Feb.2019, when RAMP (aka AMA) took effect.  

Previously there was no "cue" form.  

I suspect you could use the SCL form.  Which form did you use??

[Jangs1963]

I was under the impression it was VARO.  I asked the person why wasn’t my atty. or myself notified if we needed to file a V9? I mean I’m waiting 7 months for a response on the CUE and find out it’s just sitting in my file. I thought it was a pretty cut and dry Motion. Nothing complicated. It was from my initial claim back in 1999. 

[Jangs1963]

Sorry. It was a Motion for Clear Unmistakable Error. He attached the proof and outlined it in the Motion. 

[Dustoff 11]

In 2000 I filed a CUE Claim with VARO using a standard form 21-4138 Statement in Support of Claim with many attached pages of evidence and arguments as also part of the 21-4138 form.  Although my claim denied by VARO and BVA I appealed immediately as a pro se (representing myself) appellant with the U.S. CAVC court in D.C.

Today I believe we have to use VA Form 21-526 or 21-526EZ.   I have used both 526 and 21-4138 together in recent claim filings. Berta is probably up to date on this.

By the way I won my CUE Motion/Claim at the court thru a remand they issued instructing BVA to adjudicate my TDIU claim they and VARO failed to do in 1985.  My court case is listed under Appellant AD  with N0. 30-2067 and dated December 23, 2005 and my name was not listed due to my request to the court.  As a pro se non attorney veteran the court grants me/you a great deal of leeway in proceedings before the court.

Edited November 5, 2019 by Dustoff 11
misspelling and year correction

[Jangs1963]

Up until this point I have done everything myself and awarded 100% P&T.  Everything I read on CUE was, you get one chance at it. With that, I decided to get an attorney. Only because it is from 1999.  Although I have read everything possible on CUE, I thought my decision was best for me. I don’t understand why it is sitting in my file all this time without some sort of acknowledgement. I am sure it was originally decided by VARO in 99. If I did not contact the VA regarding this, neither my attorney or myself would have known that it was just sitting there all these months. I emailed my atty. and explained to him what I was told and he said he was going to look into it. I don’t see how the VARO can actually deny the CUE as it is all but 7 or 8 pages. That is how clear it is.  My question is, does a CUE show up on ebenefits or va. Gov so I can track it once the issue of how it should be filed is straightened out?

[Berta]

Yes, I believe Dustoff is correct on the proper form.

I had two CUEs pending at my VARO and was sent a packet with the new forms us widows need to file.

A CUE from a widow has to be filed as CUE for legal error and accrued benefits that would result from a successful CUE.

This sounds like a RO decision- if so the lawyer should not have filed a CUE Motion, he should have filed a CUE against the VARO decision. Broncovet is correct- Motions for CUE are only appropriate for BVA decisions.

GOOD for you Dustoff!   I have won many personal CUE claims but one of them took 8 years -and was resolved when I filed a newer claim under Nehmer.

The last one took three weeks. I filed it the day after I got a denial. It was awarded but contained another CUE that sat at my RO for about a year until they sent me the new forms.

Jangs =do you have a copy of what he filed?

Dustoff said " As a pro se non attorney veteran the court grants me/you a great deal of leeway in proceedings before the court".

I found that was the case for me as well when I filed FTCA for the wrongful death of my husband.

No lawyer I contacted would help me, they all said I would never succeed. I didn't even have an IMO.

I love negativity-it inspires me to go the whole 9 yards.

I had what I needed :Evidence, all from my husband's VA medical records.

One thing about the OGC- they know 38 USC,CFR, and all VA case law  in and out-they were tough but so was I ----and it was actually a wonderful experience to deal with people at the VA who actually knew what they were doing and could READ!  when I called them a fe years ago about something else, I got the lawyer who I had dealt with again and he was exasperated when I said VA owed me more FTCA money! Of course they didnt , under th original FTCA case, but they owed me a refund of the FTCA offset ,my RO refused to pay and the OGC had to order my RO to pay me....which they did right away.

 

As you know it is hard work sometimes to be representing ourselves, but  I would do it again if I had to.

I also helped my husband win the first EEOC ADA case here in NY. The ADA lawyer called him but he was in Day treatment at the local VA and the lawyer asked me who prepared all of his evidence, and I said I did.He asked if I was a lawyer- funny the DAV lawyer asked me the same thing-when I sued my DAV rep.After I deposed his client, much happened that day- this suit was not for money-, the DAV lawyer  pulled me aside and urged me to become a lawyer. ( But my only interest is really just in VA case law)   My long point here is sometimes we can do MUCH better representing ourselves-specifically with the VA- because no one knows our claims as well as we do. And the regulations VA uses against us can be turned around and used ,by us, against them.

My current issues involve a General Counsel Pres Op # 08-97. No one has ever used that against them.

OGC Pres Op states very clearly that no veteran or survivor should be deprived of a 1151 award in addition to any SC awards they have....meaning the monetary awards for each should be paid .In a conversation I had with NVLSP ( as an advocate- ) I happened to tell one of their lawyers that I had finally won my FTCA and 1151 issues, and he said- Great, and if you ever succeed with direct SC death, you get all of the comp, under 1151 and direct SC. I didn't know what he meant-this was around 1998 and OGC didnt have a web site then. Now I know- he meant OGC Pres Op 08-97. I will take this to the CAVC if I have to-but the opinion is clear as a bell, and has never been rescinded nor does it contain any statement that says "except for veteran Rodney F Simmons, or his surviving spouse."

I have never found any similar situation at CAVC or BVA whereby a veteran had both 100% under 1151 P & T, and also 100% SC P & T for PTSD. Nor any surviving spouse whose veteran spouses death was declared under 1151 for multiple malpractice issues, and then who proved their death was SC ( I have 2 separate DIC awards fo direct SC death- and have a claim in for AO Hypertension, following what the BVA awarded vet did -in our AO forum.

My IMO for that is from the VA - it was their medical opinion that awarded the FTCA case.

I sure appreciate what you have done- that CUE must have been a beauty- and I hope it garnered plenty of retro.!!!!!

I also await the audit I requested  by filing an IG complaint.It is in process and might be resolved this month.

I have had three erroneous audits to the tune of $98,000 plus, over the past 23 years,  that I did not get until the regional and General Counsel stepped in ( part of that amount was the FTCA offset) so I advise vets to carefully go over their audit figures when they get retro.

 

 

 

Edited November 6, 2019 by Berta