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What do you do when they get a CUE Wrong!


ROMAD
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Question

Ok here is the issue. I filed a CUE on my Decision from 1993 because I was rated improperly based on the laws at the time. I submitted the letter explaining the error and noted in my records what the error was. So my CVSO looked at the Decision today and it was denied and they show in the Evidence section The MEB decision from the USAF as well as the Rating decision from 1993 and The General Medical Exam (C&P Exam). So they say the considered the evidence but it is in black and white in all those documents that I meet the requirements for the higher level. Additionally one other bar is being employed at the time of the exam, and the higher level of disability requires productive of severe economic inadaptability. The Court has stated on numerous occasions that severe economic inadaptability does not mean unemployed or unemployable as that is what IU ratings are for. How can I spell it out any clearer that stating exactly where in my documents it states I meet the requirements  for 50% versus 30%? I was later rated at 50% but from 1993 to 2006 it should have been the higher level. Can you CUE a CUE?  Do you request a Higher Level Review? What is the next step.

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 And here is the 1993  Decision Letter

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and The C&P Exam

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Were the court rulings from before or after your rating decision was made? If they were from before, by all means use them. If after, you can't use them because they were not in effect at the time (unless it is one like Nehmer, which was retroactive).

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015808/M21-1,-Part-III,-Subpart-iv,-Chapter-2,-Section-B---Revision-of-Decisions

Quote

III.iv.2.B.4.d.  Considering Requests for Revision Based on CUE

 
Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or his/her authorized representative.
 
In a valid claim of CUE, the claimant must set forth clearly and specifically the alleged error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 
 
Notes:
  • A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.
  • If the CUE alleged is different from a CUE issue previously rejected, use a rating to determine whether or not a CUE was made on the new issue.

I'm no CUE expert, but based on that, it sounds like you are in good shape to appeal as long as you don't let the appeal clock expire. Just don't let the decision become finalized. 

Did they send include the usual right to appeal form indicating supplemental/HLR/BVA?

It is kind of strange because a CUE is a motion to review. I didn't see anything in that M21-1 link that says you cannot CUE a CUE.

In your CUE submission, did you just point out an error and let them figure it out? Or did you spell out specific laws in effect at the time that were not followed?

 

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Yes, there is no reason you cannot CUE a CUE denial but I don't advise doing that-

I feel you should request an HLR.

Can you scan and attach the Horners criteria from the VA rating schedule used for the 1993 decision?

Did you have at that time ( and did VA know it) that this disability caused you time off from work, within performance appraisals or anything of that nature?

I feel something ( as evidence)produced the 2006 rating, that was missing ,as evidence, in the 1993 rating.

As Vync said:

"In your CUE submission, did you just point out an error and let them figure it out? Or did you spell out specific laws in effect at the time that were not followed?"

Did you make a solid argument with the rating schedule of 1993 ,compared to the evidence they had, that would warrant the higher rating in the past?

Was the correct diagnostic code used in the 1993 rating?

 

 

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