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CUE and BVA 2020

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Berta

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Vets are fiing CUEs more and more these days.

May of them fail at the RO level but some are awarded at the BVA:

https://www.va.gov/vetapp20/files1/20000710.txt

Of the 2020 BVA  decisions posted so far, at the BVA web site, 277 contain CUE, and BVA decisions helped me tremendously over the years as they show what really is or isnt a CUE.

I was interested solely in the PTSD CUE decision:

"The Veteran contends that he is entitled to an earlier effective date prior to January 11, 2012, for his service-connected PTSD. The Veteran specifically contends that his PTSD should be service-connected back to September 2009. As there is a balance of both positive and negative evidence of record, resolving all doubt in favor of the Veteran, the Veteran’s claim of an earlier effective date for service connection for PTSD back to September 11, 2009, is warranted.

Procedurally, the Veteran filed for service connection for PTSD in September 2009. A December 2009 rating decision denied service connection as the RO found the Veteran did not have a diagnosis of PTSD. The Veteran filed a timely NOD in January 2010 which was acknowledged in a Deferred Rating dated September 2010. A Statement of the Case (SOC) was issued in May 2012 that found the Veteran’s stressor was conceded but the Veteran still had no diagnosis of PTSD. The Veteran then filed a VA Form 9 in July 2012 which was addressed in a March 2015 rating decision with a grant of service connection for PTSD effective January 11, 2012.

The Veteran then filed a timely NOD as of April 2015 requesting an earlier effective date for his service connection of PTSD back to March 2009. A SOC was issued January 2018 denying an earlier effective date and the Veteran filed a VA Form 9 in April 2018. The Board finds that the December 2009 rating decision is not final and is still on appeal."

( the stressor was conceded but NO PTSD diagnosis until January 2012....???? until the BVA found the March 2009 diagnosis in his records)

"After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam. See CAPRI records submitted October 2012. As the Veteran did not file his claim for entitlement to service connection until September 11, 2009, the Board is able to grant service connection back to the date of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Therefore, the earliest date that the Veteran can receive is September 11, 2009. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Although the BVA found this PTSD claim was still an open issue on appeal, the BVA granted the PTSD CUE.

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On 4/27/2020 at 6:25 PM, asknod said:

A CUE can only exist on a prior final claim. 

I am going to have to disagree unless you can tell me where that comes from.

In M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 

1.  Finality of Decisions - this discusses binding and finally adjudicated claims

 

Introduction
This topic contains general information on revising prior determinations, including
binding determinations
significance of binding determinations
finally adjudicated claims
binding but not finally adjudicated claims, and
revising binding decisions. 

III.iv.2.B.1.d.  Binding but Not Finally Adjudicated Claims
A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c). 

III.iv.2.B.1.e.  Revising Binding Decisions
Use the table below if revising a prior decision that is binding as defined in M21-1, Part III, Subpart iv, 2.B.1.b to determine which revision authority(ies) can be applied.

The table lists CUE for every case.

4.  CUE

 

Introduction
This topic contains information on CUEs, including

definition of a CUE
provisions of 38 CFR 3.105(a)
identifying a CUE
considering requests for revision based on CUE
responding to invalid requests of CUE
determining a case of CUE
applying the benefit of the doubt under 38 U.S.C. 5107(b)
approval of ratings prepared under 38 CFR 3.105(a)
preparing a CUE decision, and
tracking Compensation CUE decisions in the CUE log.

Notes:
CUEs are undebatable.  If it is not absolutely clear that a different outcome would have resulted, the error complained of cannot be clear and unmistakable.  
CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim

This certainly seems to rebut what you have stated about CUE only existing in prior final claim.

 

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  • HadIt.com Elder

 Explore the myths of CUE Here, you may find your answer..

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

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You answer your own contention at the beginning of your thread with the M 21 cite:

<<< M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 

1.  Finality of Decisions - this discusses binding and finally adjudicated claims

 

A finally decided claim is one that has been final for over a year-i.e. you have one year from a decision to appeal it by filing the proper form depending on it being in Legacy or the new AMA. Once a year has passed, it is unappealable and can only be attacked via the presentation of new service department records never before associated with the claims file §3.156(c)(1)(3)(4) or.... (Big Or) by the filing of a Motion to revise (MTR) the prior decision based on clear and unmistakable error (CUE). I suppose you can also say it's a pending or unadjudicated one too based on Richardson jurisprudence but that gets into a grey area as to whether it's still viable or truly a CUE.

Akles v. Derwinski was the first to bring up CUE in a finally decided claim. Russell/Simpson expanded upon it. I use the M 21 to overturn an error in a viable claim when dealing with VA. You seem to look at CUE as one thing only. In reality, it could be 1)a true finally decided claim error or; 2) an error in an ongoing decision that you contest.

From Rosinski v Wilkie 

 

correction of error

 

According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B

Snyder v. Nicholson, 489 F.3d 1213, 1216 (Fed. Cir. 2007). It does not, however, address what those agents and attorneys can or cannot access, or what actions they can or cannot take. Thus, the majority's attempt to apply this broad statute to the specific circumstances of Mr. Rosinski's petition is tenuous at best. Further, the "benefit" that the majority finds VA to have denied Mr. Rosinski is too nebulous to find that its denial constitutes a concrete injury. See ante at 5. Although the majority theorizes that time and effort might be saved by review of draft decisions, it offers no direct support for this proposition, which is especially problematic given that VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified).

Fixing it III.iv. 7 B.3.c

Rosinski v Wilkie 2018 -0678

According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B.

Please note that  the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. Thus I stand by my characterization of a CUE being a "finally adjudicated" error versus a live controversy. Shoot. I find "CUE" in a lot of my new AMA decisions. However, I do not rush to file a Motion to revise. I just call up or email the rater and tell them to fix it. VA is free to refer to it as a CUE but the CAVC doesn't recognize it semantically until the appeals period expires and you file the MTR. Since I fight CUE at the Board or the CAVC, I do not rely on M 21. You'd get laughed out of a BVA videoconference if you started quoting M 21 as law to a VLJ. 

 

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That information from helpdesk is not correct.This issue came up before here-

I tried tocontact them but they never responded, and as you can tell, they really dont want us to know who they are.

I hope no one depends on their interpretations of CUE- and also they are incorrect,on survivors and CUE.

This is one of their errors:

"A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney." 

I have claimed multiple CUEs on a 1998 decision.

Here is another error:

"The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998)."

I am living proof that is incorrect.I Lolled when I read that.

And they also support the ludicrous mantra that CUE can only be filed on a past unappealed decision.

I don't know where they are gettin this stupid information.

They probably work for the VA as claims experts.🥴

 

Edited by Berta
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Thank you Kanewnut for that SUPERB  and absolutely accurate advice based on established VA case law.

You should be a lawyer!

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  • HadIt.com Elder

Ms Berta quoted

''That information from helpdesk is not correct.''

Why do you say this berta? what is not correct about it?

This  below may not be correct  as we all know you have filed CUE on your decease hubby.

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

but does that make all of this incorrect? about the CUE?

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