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. 

[Jangs1963]

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. 

[GBArmy]

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. 

[Berta]

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.

 

[Jangs1963]

38 CFR  1404(b)

[Jangs1963]

They had to have my records. When I received my c-file, all my clinical records were there. And, of course none of my hospital records. That is why I requested the hospital records so many times; so they would have to send me a letter stating they don’t have them. When I did request specific dates and places, they kept sending me duplicates of what I already had. I actually had to write on one of the requests”do not send duplicates again.” I even called them numerous times. I’ve also been fighting with the VA over my elbow for some time. The VA doctor kept giving me cortesione shots. I told him there is something really wrong I could not move my arm at all. He got angry and said “fine I’ll schedule the MRI but if it doesn’t show anything, your arm just hurts.” Sure enough, the inside of my elbow was all torn up. Fast forward to my surgery that had to be done outside the VA bc the orthopedic doctor said it is to complicated for him to do. The doctor who did the surgery said it is a mess in there. My point is, I’m not left handed and I don’t do sports. This progressively just got so bad someone had to do something. So I guess I will continue my battle with the VA. This site has so much information and I read as much as I can. I have actually referred other vets to this site as well. 

[Berta]

There is no 38 CFR 1404(b)

That is a BVA regulation- 38 CFR.20.1404 (b)

 

"CONCLUSION OF LAW

Because the threshold pleading requirements for a motion for

revision of the Board's December 2008 decision based on CUE have

not been met, the motion must be dismissed without prejudice to

re-filing.  38 C.F.R. § 20.1404(a), (b) (2010)."

https://www.va.gov/vetapp10/files6/1041990.txt

I cannot comprehend why your lawyer is filing a Motion that is only appropriate for the BVA.

Have you googled your lawyer to see what expertise they  actually have had regarding VA claims?

If you can scan and attach here the decision that you feel is wrong- with the evidence list they used, I feel you should file the CUE yourself. We have a wealth of info and also templates in our CUE forum.

Cover your C file and name,  etc prior to scanning it.

I also suggest that you might have a basis for a Section 1151 claim on the elbow.

Section 1151 info is here as well=

Section 1151 claims- no time limit to file- rest on two points:

1.The VA failed to properly diagnose and/or treat a disability and

2. because of these medical failures, the disability got worse.

Has your lawyer suggested filing a Section 1151 claim at all?

 

 

 

 

Edited November 9, 2019 by Berta