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. 

[Berta]

I will write the CUE for you- it is based on the limited amount of info we have here....you can fill in the blanks.

I will post it here when I am done-

[Berta]

This is a claim of CUE ( Clear and Unmistakable Error) under auspices of 38 USC 5109 (A).

In your  (put exact date here ) 2000 decision) (enclosed) you violated the basic tenets of established VA case law, by failing to properly consider my evidence ,specifically a reference in my SMRs ( attached) and also the C & P exam I had in ( put exact date here) enclosed (I hope you have a copy of it)

                                                                                             Exhibit A  2000 decision - pages

You violated the conditions of 38 CFR 4.6:

Ҥ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.”

https://www.law.cornell.edu/cfr/text/38/4.6

The decision of February 5, 2000 ignores a C & P exam ( copy enclosed) done on April 12,1999, that states that “it is as likely as not” that the inservice accident caused the veteran’s back problems.The inservice accident has already been an established fact.

                                                                                                                                                                                                                                                                 Exhibit B - pages

The VA ignored this fact and the evidence of the inservice accident and stated the claim was denied due to no established nexus.

In  (put the exact decision date here) the RO awarded me for the same disability ,which I have enclosed .

                                                                                                                                                                                                                                               Exhibit C    pages      

I feel my thoracolumbar strain disability should have been given a proper rating, and proper percentage as Service Connected, based on all evidence you had, when you made  the 2000 decision.

I contend that your legal errors, in not properly considering established medical evidence, which you had,  and ignoring evidence in my SMRs, obviously  manifested a detrimental outcome to me.    

 

(Then I suggest that if they did make a NSC percentage rating, make sure it is for the right diagnostic code of 2000  that they used in the award,  and mention that info to them.

If they did Not make any percentage on the Rating sheet-or list it as NSC,

or if they gave a "0" NSC rating. you will need to find the diagnostic code they used in the award letter, and see if they had medical evidence  of the ratable disability  they awarded for,  that warranted  at least at 10 % or maybe was even 30% at that time   )

Make sure the rating schedule for the diagnostic code held no changes from 1999 to the recent award date.

The VA Schedule of Ratings has it's own area here to access.

 

Count your enclosures and total them on the CUE and sign it and make sure they get it. Make sure your name, address and C file # is on everything you send to them.

I would use the 21- 526 form    and send it to where they direct you to- probably to the Intake Center in Janesville.Or maybe you can file it on line.

This is the best I can do with the limited info here-

 

Make sure ,in the first sentence that you use 38 USC 5109 A and NOT 38 CFR 5109A  

 

 

Edited November 23, 2019 by Berta
added more

[Jangs1963]

Thank you very much. I do agree my atty needs to be researching this more. Last night I sat down to write it myself and I did use the 38 USC not the CFR. 

[Berta]

GOOD, it is an easy error to make and someone did that here recently ,for their CUE claim,  and changed it right away.

[Dustoff1970]

I would guess it would show up on ebennies as a regular claim with a very brief note of issues.  You can file multiple CUE Claims with different contentions about your claim to the VARO at anytime with no time limit.  For instance if you discover other CUE errors on same claim then you can file yet another CUE to the VARO.

However you can file a CUE claim/motion about a BVA decision only one time per claim and you must file BVA CUE motion directly to the BVA and not the VARO.  Strict requirements for CUE motions is that a vet must be very detailed specific about the CUE error/s as BVA will dismiss with prejudice a motion that contains only vague reference to a VARO or BVA error. 

Also must accurately described which rule or law the VA violated in denying your claim.  Courts require BVA  to sympathetically read CUE claims by Pro se veterans representing themselves in their CUE motions/claims and not dismiss with prejudice a pro se veterans CUE motion for lack of specific details about the errors committed but  is better to always be very detailed specific in describing the alleged errors committed and laws/rules violated.

Dismiss with prejudice means a vet cannot file the CUE motion again.

Edited November 23, 2019 by Dustoff 11
spelling

[Jangs1963]

I’m glad you clarified that only bc looking closely at my 1999 decision regarding pilinidol cyst, it appears the rater only mentioned 2 dates in my record. However, going through my records, I found 4 dates that I&D was performed. The 1982 date I spent a week in the hospital for it. They only rated 0%. I was considering adding that to my CUE as well. I believe he didn’t consider all the evidence in my record. Do I have to file a separate CUE on that or can I add it into my initial CUE claim for the thoracolumbar strain?