CUE another MUST Read-,claimants vet reps,lawyers, agents, all

[Berta]

Thank you Broncovet-

 

https://community.hadit.com/topic/78563-whats-your-experience-with-higher-level-review/

some members here are getting inaccurate advice from somewhere-

I will repeat this again-

The fastest awards I ever got, after denials,involved CUEs I filed the day after or week after I got the denial.

There is NO regulation preventing you from doing that.

There are a few vets here who took my advice and got a fast and positive result by filing CUE right away.

As I mentioned before M1-1MR was changed regarding CUE, due to my letter  to former Secretary Shinseki.

I directed him to my C file, as evidence of my position, asking that HRLs should seek CUE when a decision is made, and that is now in M21.

Also I suggested to extend the NOD deadline when a Reconsideration is filed. That too is in M21-1 now.

Also CUE IS NOT a ONE SHOT  deal !!!!!

A denied CUE can be re submitted, if it does not follow the CUE criteria.

If the BVA denies the CUE, they will often ( but not always) say the veteran or survivor is "not prejudiced":to re filing. That means the claimant can re work the CUE to fit into the legal criteria, and refile it-and if it succeeds -they will have retained the same EED ( in most if nt ll cases) that they sought with the original denied CUE.

There is plenty of info in our CUE forum on that as well.

Someone, who probably never won a CUE claim, is telling vets here that they cannot file CUE within the Appeal period, and probably this person is still saying CUE is a One Shot deal.

If a vet rep, lawyer, or agent tells you this crap  (because they have no case law to support that statement) ask them to join us   and I will give them a lesson on CUE......

I will put this in a new topic in our CUE forum.

I am tired of repeating this info.

And tired of realizing many vets who think they have a CUE, never read the CUE info that has been posted here ......adfinitum.

 

 

 

 

 

Edited just now by Berta

 

[broncovet]

Berta...

    I reviewed the link you posted.  "In part" Chris Attig is the one who said:

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2) Why file VA  CUE Claims when there is another path to victory?

When it comes to VA CUE Claims, you only get one bite at the apple.  One CUE per decision.  And a good bit of “CUE” has been subsumed by prior final BVA decisions in many cases.

Source:  Veterans law blog, Chris Attig:  https://www.veteranslawblog.org/va-cue-claims/

 I think the first I heard of (the "one cue" concept)  was on VAwatchdog by Jim Strickland.  Here, Jim Strickland went so far as to say extraschedular TDIU was "rare".  Im not sure how "rare" it is.  It may be "rare" because Vets dont persue it, sometimes in part because of advice like this:

https://statesidelegal.org/cue-and-speical-tdiu-case-are-longshot

Well I won my "special tdiu case" (extra schedular..not meeting the percent requirements in 4.16a).  Yes it was tough, but my experience is VA's "normal" is to make it hard on Veterans usually by denying them IN ERROR.  Interestingly, if you read 38 CFR 4.16 B, they make it sound "not so tough":

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(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Now, why would VA mislead Vets like this?  Reiterating the above, it says "all" Vets unable to secure SGE "Shall" be rated totally disabled.  Does the term "all" sound "rare" to you?  Also note the term "shall".  "Shall" means that its mandantory, not optional or at the discretion of VA.  

But, I digress..your post was on Cue, not tdiu, but I brought it up because I AGREE WITH YOU!  There are Vets advocates who sometimes spew inaccurate information.  This is the reason I like hadit.  If I, or another poster "spews inaccurate information" there is often another poster who "calls them on it".  We (at hadit) rarely quarrel, but instead mostly post our dissenting viewpoint and we respect each others opinion.   And, you are right.  Im unaware of anywhere in the regualtions where it says anything about "Cue" being limited to a single instance.  My VBM is "old" (2014) but I recall VBM suggesting you could file multiple cues on the same decision, since frequently a single decision has more than one error!  For example, the VARO could well have made errors in BOTH the disablity percentage AND the effective date (like they did on my decision).  So, if I "cue'd" the disability percentage, Im not sure if I am prohibited from also "cueing" the effective date somewhat later.  These are seperate:  disability percentage and effective date.  You can appeal one without the other, or you can appeal both.  So, why could you not Cue "the disability percentage" and later cue the effective date, since there is no time limit on filing cue?  

    I am getting "very close" to being  done filing or appealing VA benefits.  I have won my effective date, my disability percentage, and SMC.  While I do dispute the effective date for SMC, I have not decided whether or not I elect to appeal or CUE this.  In a nutshell, the VA awarded SMC based on the "100 plus 60", then stopped.  That was an error, because my doctor opined that I was "homebound" (using the defination in Howell vs Shinseki) because I did not leave the home "for work".  I had asked my doctor to do that, and he and I have a great relationship and he did as I asked.  Its my opinion that VA "stopping" when they saw I met 100 plus 60 SMC S, and not considering the "other part" (housebound in fact), is CUE.  

    I do think lawyers "don't like Cue" mostly because they beleive they are "hard to win" and they avoid them.  There are a few attorney's who will "go after CUE", and they may even specialize in them.  Frankly, why in the world would some law firm "in the know" go through years of BVA/CAVC appeals when a well written 3 or 4 page CUE could accomplish the same result in weeks instead of years?  

    I have spoken to more than one attorney who "doesnt do" BVA appeals any more.  REASON:  It takes years to get paid, and they simply arent capitalized well enough to wait 4 or more years to get paid.  (If a law firm doesnt want to wait 4 years to get paid, then how about a homeless Vet..is he financially able to wait 4 years to get paid?)   

    I wasnt.  I couldnt wait 5 years to get paid and lost my home, so I lost it.  If I could have fixed this in a few weeks, instead, with a cue, then I most certainly would have.  But, no one that I spoke to offered CUE as an alternative.  It may well have meant I could have kept my home.  Instead, I appealed to the BVA and won...zero percent.  So, it was back to the drawing board, and more appeals.  

    Im very pleased you are "geting the word out", that Cue is often viable and faster than a nod.  But, the "old school die hard" attitude that "you cant win CUE..appeal instead" is tough.  

     I failed at the only Cue I did.  Looking back, I know why I failed..I didnt do a good job.  I didnt cite the regulation they violated, and mostly used it as a platform to spew my anger at VA.  I was too emotionally involved to file my own CUE then, and no attorney's would take it.  I was depressed, about to lose my home..and in no shape to make great choices.  

[Vync]

@broncovet When I was doing research for my two CUEs last year, I came across that link to Chris Attig's site saying CUE was a one-shot deal. It was a real downer and source of stress, but I listened to the SVR podcast and the lawyer lady said it was not a one-shot deal. That's when I made the decision to go ahead and file my CUEs anyway. One win and one denial, so that's better than nothing.

When I asked the VA if a CUE is a one-shot deal, they told me no. They said a one-shot deal would mean you have no right to appeal. With the new system that went into effect last year, I was told that I could appeal my CUE using any of the three avenues (Supp/HLR/BVA). I asked how I could file a supplemental if the CUE regs state no new evidence is allowed. They told me that I can submit whatever new evidence I want, but the VA would not review it unless they first determined that CUE did occur. After that, they said the window for evidence would be open just like any other claim. I interpreted that as them saying that I could submit a supplemental but it would be treated like HLR until CUE was found.

 

@Berta I have been passing along what was found in the VA regulations below. It echoes what I read on many law sites like CCK and Hill & Ponton about the decision being final. There are some exceptions, but for most cases the regs say the decision must be final and cannot be appealed.

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§ 3.105 Revision of decisions.

The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.

(a)

(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended.

The reg above refers to the reg below which defines a final decision. It is either the NOD window for claims active under the old system or a laundry list of review criteria (3.2500) for claims filed after the new system went into effect.

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§ 3.160 Status of claims.

(d) Finally adjudicated claim. A claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when:

(1) For legacy claims not subject to the modernized review system, whichever of the following occurs first:

(i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or

(ii) Disposition on appellate review.

(2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available

 

 

Perhaps your reputation is well known at your VARO and you are getting the VIP treatment. The VA just decided to go ahead and process your request because they don't want to mess with you.

[Guest]

OK first thing first, Ms Berta is the one and only. There is no one like her and she is the expert that I know of on CUE claims. We should all take our hats off for the help and assistance she has given to veterans and their widows. I posted something like this a few years ago. 

Now for CUE Claims, IMHO I think the real issue with CUE Claims are the verbiage/wordage. Many veterans, VSOs, and attorneys don't know how to actually phrase a good CUE Claim. You not only have to have the evidence to support your claim/theory, you have to phrase it in a legal manner. I am not the one to believe that VA would just roll over and pay off/out a CUE claim just because VA doesn't want to deal with the headaches.  Again the claim must be clear and show proof of detriment.  I do agree that when a veteran responds to a rating decision, filing a CUE Claim or just a NOD should be done with a clear head.  Spewing anger at the decision or the decision maker won't help.  Begging and pleading won't help.  A veteran and or his representative must show/prove by regulation and law that an error was made, no more no less. Yes, there are times when veterans give either too much or too little information about their claims.   There are many ways to win an EED after a denial and the simplest is by filing a NOD.  Those who have been around this site knows that a Cue is not a onetime shot and has no time limit. Once an attorney loses a CUE, they feel the claim is a no winner but the claim can still be won under a different CUE if the situation warrants it. Always keep in mind that a timely NOD and A CUE Claim will result in the same outcome decision. Another thing has change as to the regulations, a CUE Claim must be filed using the regulations and laws at the time of the decision. I won my CUE Claims under the legacy regulations even though they were recent wins.

[Vync]

@pete992 I agree, Berta is awesome and super helpful! I had no clue what M21-1 was, but she educated me!

I blindly trusted my VSO 20 years ago, but joining Hadit helped me learn that even when the VA grants an award, it may still be riddled with errors. I could not NOD for an EED because the claim was finalized, so CUE was the only option.

 

I think I found where the one-shot deal came from. I found this in M21-1 and also happens to be the part that says no specific claim form is required for CUE. Look under the "Notes:". There's the "final decision" part again, which indicates what I posted in my previous post. If a CUE is denied, don't let the appeal window expire. Keep it alive. If it does expire or goes all the way and is still denied, probably the best option is to research another set of criteria that can be used to contest the decision.

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#4d

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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. Important:  If a CUE finding has been determined, it may affect subsequent rating decisions to the extent that revisions in the subsequent rating decisions may be required.  See Pirkl v. Shinseki, 718 F. 3d 1379 (Fed. Cir. 2013).   Reference:  For more information on responding to an invalid CUE request, see M21-1, Part III, Subpart iv, 2.B.4.e.

 

[Guest]

I am not familiar with your claim but I had a decision to become finalized and instead of filing a CUE Claim, I filed a reopened claim. VA was nice enough to grant my claim so I was nice enough to say oops, didn't you forget to review my entire file and asked for an EED date and won. In the last five years I won, two EEDs, Two CUEs and and Original claim for EED using VA regulations and laws.

[broncovet]

Pete posted:

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OK first thing first, Ms Berta is the one and only. There is no one like her and she is the expert that I know of on CUE claims. We should all take our hats off for the help and assistance she has given to veterans and their widows. I posted something like this a few years ago. 

I agree there!  She is the best.  Im actually suprised that Chris Attig had the "one shot" for CUE on his website, but I also respect his opinion.  By the way, I was represented by Chris, he won a remand for me, and eaja paid all the fees.  Upon remand, I took Attig's advice, and got an IMO and won at the BVA.