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Another CUE "must Read" - 3 prongs of CUE


Berta
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Question

I got this from a post I made in 2013 and have since repeated the 3 prongs many times.

CUE is not really a 'claim' as such- it is a Collateral Attack on any VA decision that is legally wrong.

If these three prongs of CUE are not satisfied, then there is NO basis for CUE.

The info  is for a CUE filed within the appellate period but the prongs are the same for any CUE, (even award letter contain CUEs), and many were committed long ago in past VA decisions.******

The three prongs have never changed for any type of CUE.

 

"To get VA to CUE itself requires

 

1. a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)*****

 

2. a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)

 

3. A formal request that VA CUE the decision, supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting themselves to CUE. This type of request must be made within the appellate period.

(To add, use the recent  template citations here at hadit for the proper wording of the CUE request.)

 

.......................................................................

(Some of this 2013 post below has changed----but still my point is that the three prongs of CUE have Never changed.

I forgot about the IRIS CUE. It got me a double DRO review.")

 

"I might post ,my Dec 2011 CUE request too----I did that by Fax,IRIS, and phone with VA Central and don't have a lot of hard copy stuff on it. VA Central turned on that one in 3 weeks.

 

My 2005 CUE request started out with Fax stating "What the Hell is this," sent to the Director of the Buffalo VARO and IRIS complaint to VA Central and copy in email to my wimpy vet rep.

 

They (VA)moved on that fast too.

 

I think that one is documented 2 PCs ago.

 

If a veteran or surviving spouse like me has a solid leg to stand on, (with evidence of CUE criteria above) they then need to kick the VA in the A-- with their other foot ---during the appellate period. They need to watch the NOD deadline clock too.

 

VA keeps thousands in comp when vets don't challenge an erroneous decision ,even if it is an award letter.

Either with this maneuver or by preparing their NOD and appeal , shaped ....not for the RO these days, or for the black hole AMC,

but shaped instead, for the BVA.

Due to the critical backlog.

 

This doesn't stop the NOD clock!

If the VA ignores or farts around with this type of request,without a proper resolve, make sure you file a timely NOD,raising the same legal error issues."2013 post

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CUE Templates

My Original heart Disease Cue was much shorter than this but I re wrote it for you with more info in it that shows how we have to support this type of claim.

 

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

 

 

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

 

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to his death.

 

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

---------------------------------------------------------------

This can be used as a template and there are more templates here but this covers the main points:

 

Defining the exact legal error with proof from the past decision.

Stating the outcome was detrimental to you (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.

 

Checking the ratings for the year you are claiming CUE was made.

Going over 38 USC 5107 and info here for the best way to word and present this type of claim.

 

 “lack of proper rating” or of any rating they should list and rate is a CUE.

 

I didn’t know this was an IHD situation until the AO  IHD regs came out .By then this CUE had been at my RO for 6 years, set for BVA transfer but the Nehmer RO awarded this CUE and 2 others I had pending because they all had impact on a proper IHD Award.

 

Of course I have to prove that this unacknowledged heart disease was, in fact, ischemic heart disease so that involved a lot more work on my part reviewing the medical records. No where in any VA document or record was this stated as being ischemic heart disease.

The ECHO and EKGs did…and the autopsy.

----------------------------------------------------------------------------------------------------------------------------------

 

 

 

My Original heart Disease Cue was much shorter than this but I re wrote it as  a template for you with more info in it that shows how we have to support this type of claim:

                            XC XX XXX XXX

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

In the enclosed 1998 DIC award letter rating I received the VA failed to acknowledge and rate the deceased veteran’s heart disease,which was one of the “ multiple deviations “ in medical care that  the decision under Section 1151 was based on.

Exhibit A 1998 VA DIC award and rating sheet                4 pages

 

I have enclosed  as Exhibits B and C, further medical documents in VA possession at time of the 1998 decision that prove that veteran’s heart disease was undiagnosed and untreated and contributed to my husband's death.

 

Exhibit B  VA Peer Review March 1995 reguested by Regional Counsel and prepared by Dr XXXXXXXXXXXX, Bath VAMC.   malpractice on heart  6 pages

 

 

Exhibit C        VA Central Office Strategic Health Team Cardiology report  regarding malpracticed and defined many medical  “ multiple deviations” that all “ hastened” the veteran’s death                                             2 -pages OGC, 2 pages VACO

 

The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

 

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”

 

---------------------------------------------------------------

This can be used as a template and there are more templates here but this covers the main points:

 

Defining the exact legal error with proof from the past decision.

Stating the outcome was detrimental to you (because if the error had not been made, they would have owed you more cash)

 

Making sure they had the established medical record in their possession (regardless of where it was, as long as it was at VA.

 

Checking the ratings for the year you are claiming CUE was made.

Going over 38 USC 5107 and info here for the best way to word and present these types of claim.

 

 “lack of proper rating” or 'lack of any rating' that is detrimental $-wise,  is a CUE.

 

I didn’t know this was an IHD situation until the AO  IHD regs came out .By then this CUE had been at my RO for 6 years, set for BVA transfer but the Nehmer RO awarded this CUE and 2 others I had pending because they all had impact on a proper IHD Award.

 

Of course I have to prove that this unacknowledged heart disease was, in fact, ischemic heart disease so that involved a lot more work on my part reviewing the medical records. No where in any VA document or record was this stated as being ischemic heart disease.

The ECHO and EKGs did…and the autopsy.

 

 

 This one of many templates here for CUE, under the CUE format for filings,both  within and out of the appellate period:

 I won these claims.....SMC award posthumously and also the IHD award ( Nehmer)

My 1151 2004 CUE of my husband;'s heart disease is STILL an open issue.

I thought the Nehmer decision would consider it, but they only awarded under direct SC for IHD.

I assume that claim is under scrutiny now due o my 2 current CUEs and audit request.

 

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A

The established VA case law and regulations that VA broke are found within:

 

M21-1 Erratum Part IV Change 113 under 3.09 and 3.10. (enclosed)

 

Also within General Counsel Precedential Opinion # 30-97 (enclosed)

 

And also within various BVA decisions such as :

 

http://www.va.gov/vetapp01/files01/0109438.txt

http://www.va.gov/vetapp02/files02/0206948.txt

http://www.va.gov/vetapp98/files4/9834165.txt

http://www.va.gov/vetapp04/files2/0410177.txt

 

all available at your web site.

 

Also under established regulations and case law  auspices of the above regulations, the VA also failed to rate the veteran’s significant and deadly heart disease causing his death due to VA medical care as stated within the Section 1151 award letter of Jan, 1998.

 

The veterans rated at 100% SC for PTSD had Section 1151 disabilities listed on the rating sheets of 1997-1998 as well over 100%.

 

100% SC PTSC plus 100% or more Section 1151 disabilities equals Special Monthly Compensation.

 

CHAMPVA (letter enclosed) also verified that the veteran’s Section 1151 disabilities were 100% P & T per VA records. CHAMPVA was awarded to me based on Rod’s 100% PTSD P & T rating.

 

The veteran was fully eligible for SMC consideration and I request these legal errors to  be corrected and awarded as an accrued benefit under the auspices of 38 USC 5109A."

If filing within the appeal period put Attention to: and then put the alphanumeric at top right hand side of the decision letter. That will identify the idiot who made the illegal decision.

 

 

 

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If a BVA decision contains a LEGAL statement,  appropriate to your decision,

you can use it to support your CUE.

Same for any OGC Pres Opinion, and any CAVC opinion.

We have many more templates here as well.

Sorry for double info - then again it bears repeating-

I am in a cloud- access is limited....

 

Edited by Berta
in cloud at high altitude
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Cue phobia is real.  Mostly, we take the appeal route instead of cue because "were not sure" of the VA regulations.  And we are smoking the "hopium" that VA will grant us because of "benefit of the doubt"(BOD).  In practice, Im not sure that BOD exists in reality.  If BOD existed, in reality, then why not award a Veteran whose doc said, "this could be related to service"?

"Could be related to service" is a buzz phrase for denial.  

I think it may be more about this:  When we cite a regulation, case law, etc., we often get credibility "even if" the interpretation is all wrong.  Now, I cite regulations, and dont spew my anger at VA.  

Most of my early filings were filled to the brim with anger at VA.  And I wonder why I was denied?  Gee, literally shouting and spewing anger at the decison maker reading my appeal is not a good way to start.  Its like wooing your wife to be by beating her up and yelling at her.  

Edited by broncovet
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41 minutes ago, broncovet said:

Cue phobia is real.  Mostly, we take the appeal route instead of cue because "were not sure" of the VA regulations.  And we are smoking the "hopium" that VA will grant us because of "benefit of the doubt"(BOD).  In practice, Im not sure that BOD exists in reality.  If BOD existed, in reality, then why not award a Veteran whose doc said, "this could be related to service"?

"Could be related to service" is a buzz phrase for denial.  

I think it may be more about this:  When we cite a regulation, case law, etc., we often get credibility "even if" the interpretation is all wrong.  Now, I cite regulations, and dont spew my anger at VA.  

Most of my early filings were filled to the brim with anger at VA.  And I wonder why I was denied?  Gee, literally shouting and spewing anger at the decison maker reading my appeal is not a good way to start.  Its like wooing your wife to be by beating her up and yelling at her.  

Yeah, that benefit of the doubt deal really hoses us veterans. I was denied a hypertension claim because the doc said it was "probably" related to service. The dictionary defined probably as, "almost certainly; as far as one knows or can tell", but the VA denied it. It sounds like the VA gives benefit of the doubt to their own arguments over those made by treating physicians.

What you wrote about CUE is very important: eliminate any emotional arguments.

Per your advice, I ended up I boiling my CUE down as follows:
1. Here's the laws or precedent court rulings in effect when the decision was made.
2. Here's the facts/evidence of record when the decision was made.
3. Here's what the VA did.
4. Here's how the VA failed to follow the laws/regs/precedent court ruling in effect when the decision was made.
5. Here's the result had the error not been made (outcome determinative).

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