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. 

[Dustoff1970]

To be safe I would file a separate CUE only with the VARO on your just stated issue.  However if the BVA has already made a decision with your first CUE on the same claim you may have to file the CUE motion with the BVA as the BVA decision subsumed the VARO decision.  It is complicated as hell if the BVA has already ruled on your first VARO CUE claim.  If you did not appeal your VARO  CUE claim to the BVA then I would go ahead and file another CUE claim only with/to the VARO as a separate CUE claim and not add it to your first CUE claim.  That won't work in my opinion.  

According to VA rules and court rulings you must be very detailed specific about the errors and violation of laws/rules the VARO committed on your original claim for your CUE claim to be accepted later by BVA.  The BVA and CAVC court will not accept a CUE motion/claim that list only a vague statement of error/s you allege and they will reject it with prejudice unless your are a pro se vet then you will have to refile a better prepared CUE motion with very detailed listing of the errors. (start all over again).

One example of a CUE error is if there were important medical records in your service medical records that were not before the VARO when he/she made their decision on your claim then this could be CUE.  This may also apply to VA medical records that was not before the rater at the time of his decision but should have been.  You of course may have to prove this by careful research and reading of evidence listed in the VARO decision.

Representing myself in 2005 I filed a CUE Claim/appeal all the way to the U.S. CAVC veterans court and won a remand after having been denied by both VARO and BVA.  Way too much hassle at my age for me to ever do it again all the way to the court.  I would use a qualified lawyer next time.

I am not an attorney, paralegal, VSO or advocate so therefore the above info is not legal advice but only my personal experiences.

Edited November 24, 2019 by Dustoff 11
additional info

[Jangs1963]

Thank you. I appreciate your experience. And, yes it is so confusing to say the least. I’m going to sit day and go over my c file one more time. I do have an appeal waiting for review on another issue. I’m sure that will be there for some time. I’m going to file the cue properly this time. Whatever happens happens. I can see how veterans eventually call it quits. 

[Jangs1963]

I went thru all my decisions again. Yes the code did change from 1999 to present. In 1999 it was code 5295 and when I was finally awarded, it has diagnostic code 5242. From what you are saying, if the code did not stay 5295 to present, it would not be CUE?

[Berta]

Was there any percentage  on the older  decision rating sheet next to the 5242 rating?

The diagnostic code they used at the time, before the change, is what controlled the rating.

If your documented medical evidence was in VA's possession at time of the past claim, and it warranted a higher rating, based on the diagnostic code they used, at that time, that could be a CUE.

But that would depend too, on what percentage they rated it on.

". The criteria for entitlement to an initial 40 percent rating effective June 6, 2017, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5242 (2018)."

https://www.va.gov/vetapp19/files7/19158951.txt

The decision mentions thoracolumbar spine. Since this is a recent decision, it means that 5242 did not replace 5295,but 5295 did control your award.

This is how I won my CUE claims:

https://www.bva.va.gov/

Click on decisions and then select the specific years.

Use the diagnostic code and CUE and search the decisions, Then use your disability and in the next search box put DC 5242. 

This takes considerable time to do, but the BVA was the only way I learned of what is and is not a CUE.

And one other thing- I have purchased the VBM from NVLSP since 1991- they have a full section on CUE,but it was the way the BVA regarded CUE that helped me the most-

Perhaps they used the wrong DC code in 1999 ( but that was before 5295 )

but,in any event all of the DC code ratings are here in the VA SRD forum, and your established medical evidence in the 1999 decision ,should compare to something ratable to at least  10%.

That is where you should start first-at the VA SRD-

and compare the medical evidence VA had for the caim and see if it warranted a higher rating than "0" and also, if in fact it was the proper code, because as you can see in the above BVA case, there were many DC codes that seemed to be appropriate in that veteran's case.

My SMC CUE was prime facie but also the decision was based on wrong diagnostic codes that only warranted an 80% disability in a 1998 decision they rendered for my dead husband. It was only the second CUE I ever filed at that point.

The first was for my daughter-VA Edu made the error and awarded within 3 weeks after they got the CUE-

The SMC CUE was awarded ( 8 years later)and then at some point they raised, due to another CUE, that rating to 100%  -solely due to the wrong diagnostic codes.

It was awarded in mere weeks by a Nehmer VARO. They seemed to grant a different CUE I had pending for 7 years-IHD-but awarded direct SC for that instead of 1151.I have a CUE on that as well.I want both awards.The IHD was a well documented  malpractice issue in the FTCA CAse.

I have another CUE on the 1998 award .The director of my RO(who held onto the SMC CUE for 8 years with no BVA transfer told me by phone regarding one of my claims, that my husband;s catastrophic 1151 stroke, the VA caused was Total but not Permanent when he died.All of the medical evidence that had revealed the P & T status, and even his autopsy revealed 6 areas of brain damage that no one could possibly recover from.And VA Central (FTCA) stated the stroke contributed to his death , as well as the other VA medical errors.

It is VA policy to deem any veteran with a 100% disability, as Total and Permanent if they have the 100% until they die.Three or 4 VA doctors documented he was 100% P & T due to the 1151 stroke.

My point ( I brought this up with the IG-there were 2 phone calls, no hard copy), but the fact remains that a VA official (the director of the Buffalo VARO)tried to impede my VA issues with a false statement that has no VA case law whatsoever to support it.

But the director forgot- I have it documented in my C file.

VA makes a lot of errors but whether CUE or other types of errors, it might take us a lot of time and work  to get them corrected.I have had errors on every single claims I ever filed.I believe it is deliberate because of the wrongful death claim.I started fighting the VA in 1995 and am still at it.And have not lost any CUE or other type of case yet-so it looks to me like you have work to do on the specific 1999 denial for the spine issue.

You said:

"I can see how veterans eventually call it quits."

That is what the VA wants.It reduces the backlog every time a veteran walks away.

And after some experience I had with 2 POA orgs, I believe these POA sometimes want that as well. The best vet rep anyone can have is Themselves. ...in my opinion.

I have to get that false statement corrected- not for me but for any other widow out there whose claim was denied on the same basis- that they had a Total continuous SC or 1151 disability  but say it was not permanent at death. ...even if it lasted for over ten years.

 

 

 

 

Edited November 25, 2019 by Berta

[Jangs1963]

On my initial denial, it indicated no nexus. They didn’t service connect it until 2016. When I read my c file I saw little notes they had in there regarding the mva. They couldn’t find any reports of the accident. Which I don’t understand. It was a military vehicle. We were on duty. Driver was life flighted. Vehicle was totaled. Nevertheless, there is a diagnosis in my c file “dexteoscoliosis of lumbar spine.” Like I said my only saving grace was when I got back on post I went to sick call. I went a few times complaining about how my back was hurting and my arm. So those are the only records in there.