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Jangs1963

CUE Motion

Question

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. 

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This question came up before and the consensus is what Vync said:

"I called my local VSO and he told me to use the VA Form 21-526EZ (which is for new claims)."

This was the first post here:

"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. "

I wonder why an attorney filed a Motion of CUE on what seems to be a RO decision. Something does seem to be "amiss" here.

A Motion form is far different from regular claims forms. The 800# is correct in this sense- one can only file a Motion on CUE with the BVA-you dont have a case at the BVA yet-to file  Motion on-

I 'll go over your past posts ,to try and figure this out, but could you scan and attach here the decision you believe holds a CUE?

A bonafide CUE claim could be rectified within the appellate period.Most of my CUE claims were.

No need for an NOD or I-9 appeal.

Cover your C file and name, address prior to scanning it. and please add the evidence list.

 

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I only found this post and the welcome post.

What was the date of the decision, if it does not show up on the scan.

 

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In 1999 I filed my initial claim. I was involved in a rollover MVA in a military vehicle on the autobahn. Driver was lifeflighted, I was taken by ambulance. My entire back was hurt, as well as my elbow and wrist. When I returned to post, I went to sick call bc my back hurt so much. X-rays taken and was diagnosed with dextroscoliosis and lumbar sacral strain. I continued to go on sick call with back pain. I requested my medical records from the 97th seven times. Giving specific dates. They finally sent a letter back indicating they don’t have them. Fast forward to my C&P exam of 1999. VA examiner indicated my back problem is “more likely than not” due to mva while in service. My claim was denied stating no nexus. I never filed a nod or appeal so it became final. I tried to reopen my claim in 2015 and had to mail all my medical records in with my claim. About 2000 pages concerning all my back problems. They reopened and awarded 30%. It took me a year to receive my c-file. I went thru it page by page when I saw the initial C&P report. As my back problems got progressively worse, this year they finally awarded me 100%. But it doesn’t dismiss the CUE from 1999. Before I sought out an atty to handle the cue, I read everything I could possibly find regarding cue. I wanted to be sure I had a good chance of winning it. I do have faith in my atty. it’s the VA I wonder about. So, when I gave my atty my paperwork he couldn’t believe what he was reading. Hence he filed the Motion for CUE. I am sure he said it goes to the RO bc they made the initial decision. When I received my most recent decision on my cervical, I called the 800# and asked did it include my cue. She said no. The cue motion is in my record but it was not assigned or being worked on because it was on the wrong form.  I did relay this to my atty. who said he was going to look into it bc it makes no sense. I also have a claim in for my elbow and They have continued to deny my elbow. I just had surgery on my elbow in Feb. and my claim for my elbow is now sitting in the long list of appeals. 

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All I can come up with is Ain't the VA wonderful" . Keep fighting brother; you'll win. You may be dead, but you'll win. 

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This is the form I believe the attorney  needs to use-

https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf

":Before I sought out an atty to handle the cue, I read everything I could possibly find regarding cue" Good for you-

It certainly sounda like the basis for a good CUE.

Question-did the attorney approach the CUE , as a violation of 38 CFR 4.6, or as a claim of CUE under 38 CFR 3.156? Or both?

I am astonished, since this seems to be a VARO decision, that he filed the CUE as a Motion.

We have plenty of CUE templates here- maybe you should use the above form and with a template to guide you, you could file it yourself.

But It sounds like a case of "newly discovered service records"   38 CFR 3.156-

or a case of violation of 38 CFR 4.6 ( My favorite CUE regulation) because, if they had your service mdical records, but didn't consider them, that is a CUE.

 

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