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CUE Update


RBrogen
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Question

I wanted to send out an update on my CUE claim.  As I suspected from the process and response, I received a denial decision letter today.  They denial almost verbatim regurgitated the same statements from the original denial in 1999.  It's like the reviewer simply read the original denial, retyped it and said too bad without addressing the issue of probative values and presumption of sound condition.  My question is for next step, should I go through the process of Higher Level Review to see what they say before going to the Board of Appeals to exhaust every option before hand.  Any thoughts would be greatly appreciated.

Best,
Randy

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If you have an IMO I would go directly to the BVA.  Your chances of a win there are better.  Otherwise I would go with an HLR and see what falls out.

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Just now, vetquest said:

If you have an IMO I would go directly to the BVA.  Your chances of a win there are better.  Otherwise I would go with an HLR and see what falls out.

I don't have an IMO but I am now service connected for the 2 conditions in the CUE (right knee disorder, left knee disorder).  The CUE is for an EED.

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  • Content Curator/HadIt.com Elder

Did they respond to each point of contention you made? Or did they simply disregard most or all of that?

I'm no CUE expert, but I have seen cases where veterans may simply file a CUE consisting of a paragraph or two, but then trust the VA will interpret their argument.

I have my first two CUE's in the hopper. I focused on each and every error the VA made. I quoted the law in effect at the time, evidence of record, explained very specifically how the VA committed CUE, and the potential change in the outcome.

Can you also please check the documentation that was mailed with your denial? Did it say you can file supplemental, HLR, BVA, or something else? Honestly, supplemental should not be an option due to the nature of it, but was curious if they had a special document for appealing CUE vs. just sending out the usual form like they do for everything.

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4 minutes ago, Vync said:

Did they respond to each point of contention you made? Or did they simply disregard most or all of that?

I'm no CUE expert, but I have seen cases where veterans may simply file a CUE consisting of a paragraph or two, but then trust the VA will interpret their argument.

I have my first two CUE's in the hopper. I focused on each and every error the VA made. I quoted the law in effect at the time, evidence of record, explained very specifically how the VA committed CUE, and the potential change in the outcome.

Can you also please check the documentation that was mailed with your denial? Did it say you can file supplemental, HLR, BVA, or something else? Honestly, supplemental should not be an option due to the nature of it, but was curious if they had a special document for appealing CUE vs. just sending out the usual form like they do for everything.

They did not respond to each point of contention I made, they just disregarded that, retyped what the original denial said.  I quoted the laws in effect, referenced the exact code and stated that they did not take into consideration presumption of sound condition nor probative values of the evidence available at that time, (e.g. doctors reports, airborne training etc)  The documentation says I can do HLR, Supplemental and Appeal to Board, same format as all of my other claim decisions.

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I pretty much agree with Vestquest;  there is one advantage in going for a HL . The BVA is much more likely to give a fair reading. But, there  is one advantage going for a HLR. You get a better slant possibly in what the VA is thinking on their original denial. If you have the evidence, etc. you could possibly get a much faster approval. If not, probably delay your process now by maybe 6 months. If it isn't worth it to you, just go BVA and skip HLR.

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I figured you delivered a pretty solid set of arguments. It makes me wonder if they took your arguments and considered them new evidence, thus disregarding it. But since they just regurgitated the original denial, I don't expect them to tell you if they disregarded your submission either. Keep in mind the CUE laws require the veteran to be very specific in telling them the error.

I agree with @GBArmy, at least with HLR you would get an answer much faster. Every time I went to the BVA, it took years. Months or less than a year sounds a lot better than years.

Anyone have any idea if you can request a "de nobo" HLR for a CUE? That's when you get a fresh set of eyes to look at it. I did that with a DRO (which took years) and won. The DRO said the people who looked at my appeal previously made a series of stupid decisions. That might be worth looking up in M21-1.

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1 minute ago, Vync said:

I figured you delivered a pretty solid set of arguments. It makes me wonder if they took your arguments and considered them new evidence, thus disregarding it. But since they just regurgitated the original denial, I don't expect them to tell you if they disregarded your submission either. Keep in mind the CUE laws require the veteran to be very specific in telling them the error.

Yes I spelled out the errors, provided supporting evidence and logic.  They even eluded to the fact in the "Positive Findings" that I am currently service connected for those conditions.

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1 hour ago, RBrogen said:

Yes I spelled out the errors, provided supporting evidence and logic.  They even eluded to the fact in the "Positive Findings" that I am currently service connected for those conditions.

Hmm... It stinks when the VA is supposed to do their job but roll out the red tape instead.

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6 minutes ago, Vync said:

Hmm... It stinks when the VA is supposed to do their job but roll out the red tape instead.

Crazy thing is in the original denial decision letter Oct 4, 1999, they denied me for a pre-existing condition (unsubstantiated and without any medical evidence to show it).  This new decision stated "After reviewing records, there is no evidence on the enlistment exam of a prior left knee injury, we we conclude the left knee was considered stable on entry into the service." 

Basically they said in their own words, the previous decision denied you because you had a pre-existing condition, but we found that it didn't exist, but we are going to deny you anyway .... WTF.

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  • Content Curator/HadIt.com Elder

Whoa... Now that's just nuts. It sounds like yet another potentially obvious error made by the VA.

Pre-existing conditions are not automatic denials. I am SC for a pre-existing condition, but then again, the VA even screwed that up. I was SC for aggravation and they hosed up the pre-existing disability percentage (heart of my CUE).

For what it's worth, on my entrance exam, I checked off the box for sinus issues, but the examining doc checked the "normal" box. Of course, I have medical records from before service to prove it existed.

When you check your entrance exam, did the same apply to you? (you admit having it, but doc indicated it was normal)

 

For what it's worth, I won my aggravation claim via relative equipoise.

The C&P exam said, "In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service, especially when he developed asthma in 1991, while in the service. One can imply that his condition got worse while he was in the service."

The decision letter talked about the history of what I claimed, what was found in my STRs, what the C&P doc said. They conceded relative equipoise: "Resolving reasonable doubt for the veteran service connection is granted for allergic rhinitis/sinusitis."

I know it is tricky trying to get an EED because you cannot use reasonable doubt/relative equipoise (dumbest policy ever).

 

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13 minutes ago, Vync said:

When you check your entrance exam, did the same apply to you? (you admit having it, but doc indicated it was normal)

 

No .. I didn't annotate any defects on any of the 3 different entrance/airborne exams I had.  The C&P examiner in an earlier exam in 1991 asked me if I had every played sports and had any injuries.  I explained that I wasn't sure if it counted (yes trying to be honest about it) but I tried out for high school football and on the first day of try outs I was tackled and it hurt my left leg.  I left the practice with no residual issues, never went to doctor, no medical treatment or records.  Turns out the doctor wrote "left knee injury prior to service, ligament injury" on the exam notes with out any medical evidence.  So that is what has plagued me from the beginning.

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That is lay testimony (i.e. known as evidence). I didn't send my pre-service medical records to the VA. They accepted what I verbally told them. I don't think me checking the box on the entrance exam had any bearing because of the presumption of soundness. However, you do have a doctor stating you have the pre-service injury.

Isn't there some provision allowing doctors to opine about a pre-service injury without having actual medical records in front of them? I vaguely recall that. It had to do with the veteran describing the circumstances, the examiner performing an exam, and coming to a conclusion. I recall examples like an x-ray showing proof of healed fracture, etc...

 

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I'm not sure about the provision.  However, with no medical records, no treatment records, 3 entrance/airborne exams in the negative spanning 4 years, and the documented statement that there were no lingering issues, no medical treatment sought and I returned to school the next day, I would think coming up with a "torn ligament" diagnosis would not be acceptable.  I also told them the only reason I remembered it was because I was teased by other students when I didn't go back to football tryouts the next day.

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Soft tissue injuries can be a bit cryptic. Not having a paper treatment trail could be a problem.

 

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Here are some old rulings. I'm not certain if these are precedent or single just decisions, but they might be helpful. I found them in some older BVA rulings from 1995 through 2000. Of course, they were likely for active appeals, not CUE. 

 

Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court)
https://www.uscourts.cavc.gov/documents/Gilbert11-2355.pdf

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000058568/Gilbert-v.-Derwinski,-Jul-25,-1990,-1-Vet.App.-49-(1990)

 

The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court.  38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). 

https://www.uscourts.cavc.gov/documents/Webb_00-340.pdf

 

To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 

https://www.uscourts.cavc.gov/documents/Harris_99-53.pdf

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000061412/Caluza-v.-Brown,-April-12,-1995,-7-Vet.App.-508-(1995)

 

 

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I submitted an HLR for the CUE decision and requested an informal conference call ... not to my surprise, no one called and when I followed up with the VA today, the HLR is pending decision.  I am going to assume it was a rubber stamp and not a real review of my case.  I will wait for the formal letter and then submit the Board appeal.

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I really hope they get your claim right this time.

When I submitted my CUEs, I requested a call. When it was getting close to decision time, I called 1-800-827-1000 and asked when I will get my call. One guy chuckled and said I would not be getting one. I asked him why not because it was part of the form I sent in. I called the WH VA Hotline and put in a complaint. This past Monday, I received a call that is in response to my complaint. The guy was able to tell me some of the particulars (what was granted and % changes), but said he could not talk about retro amount or how they came to the decision itself. The problem was they denied my CUE for TMJ % due to not applying DeLuca. When I got the letter from my VSO the next day, that's exactly what happened. I was hoping the moron would perform a split decision to send out the awarded claim and kick the jacked up claim back for processing. I was actually hoping to get a call from the person making the decision. Probably next week I will be filing a supplemental.

In a way, I kind of miss being able to file a reconsideration request. At least with that you don't lose your place in line. I'm worried that when I file a supplemental or HLR, we get sent back to the start of the line.

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16 hours ago, RBrogen said:

I submitted an HLR for the CUE decision and requested an informal conference call ... not to my surprise, no one called and when I followed up with the VA today, the HLR is pending decision.  I am going to assume it was a rubber stamp and not a real review of my case.  I will wait for the formal letter and then submit the Board appeal.

From one veteran to another my best advice is try your best to stay healthy ( HA, HA, HA), never give up the fight.  Take your claim all the way to CAVC and try to outlive your claim.  Sorry to say really not joking, one thing or another is going to take us out of this world so if you feel your claim is worth it then fight, fight, fight and if you pass stick your hand out of the grave and give your dependents evidence they need to fight. 

Yes, sorry again feeling jaded about the VA system and what they do to veterans.  They hire and pay more and more employees and pay them instead of paying veterans. 

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I actually called the White House VA complaint line and they said they will have someone reach out to me to ensure I have my call before the final decision on the HLR is registered.  Not sure if that is going to change anything as it is apparent they are using the HLR to flush things through as quickly as possible and not really do any meaningful review of a decision.  Regardless, I'll continue to shoot, move and communicate! :)

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21 hours ago, RBrogen said:

I actually called the White House VA complaint line and they said they will have someone reach out to me to ensure I have my call before the final decision on the HLR is registered.  Not sure if that is going to change anything as it is apparent they are using the HLR to flush things through as quickly as possible and not really do any meaningful review of a decision.  Regardless, I'll continue to shoot, move and communicate! 🙂

Back in 2012 and 2013, I received callbacks about a couple of claims before the decisions were finalized. In one case, it was spot on. However, another they had to go back and retool it a bit to get it right.

With the two CUEs I placed in September 2019, in the original submission, I requested a callback before the decision was finalized because I had a strong feeling they were going to screw it up again.

Due to the repeated unnecessary delays, I called the WH VA Hotline and reported the delays. I did get a callback from some supervisor. However, that was after the decision was made. He merely was calling to tell me that the unnecessary delays I reported were found to be legitimate and they were taking corrective action. He was able to tell me I won one and lost one, but could not discuss the meat of the decision. Of course, the one I lost was yet another bogus denial and I am appealing that via supplemental. However, it could have been prevented if someone would have just fulfilled my original request.

 

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