Proper Form to Use for Submission of a C.U.E. Claim

[Harvey Ryan]

Hello all,

My name is Harvey Ryan.  I'm an Air Force veteran, rated at 100%.  I could really use some help.  I've been attempting to submit a Request for Revision concerning an Earlier Effective Date for Service Connection for Migraine Headaches based on a C.U.E.  I don't know what form to use.  I was granted service connection for migraines with an effective date of December 2009 (the decision was made back in 2015).  It was based on newly discovered service records that I'd been arguing were present for 15 years.  The decision was made in my favor, however, they didn't consider the claim back to the original denial, which was June of 1993.  My argument is based on the following:  "38 CFR 3.156  Section (c) , as is outlined in M21-1MR Section 2a and 2d.  CFR 3.156 Section (c): This exception deals with newly discovered service department records or records that existed at the time the VA made its decision and simply did not associate with the claim.  If the claim was denied previously, but then granted on records which have recently been discovered, the regulation requires that the VA consider an effective date back to the time of the previously denied claim."  In the decision letter, the effective date was only given to the date of 'receipt of my claim to reopen': .   “In light of the evidence, an evaluation of 50 percent is assigned from December 14, 2009, the date of receipt of your claim to reopen your claim for service connection.”   My argument is, because the regulation was NOT properly applied (direct contradiction to the mandate of evaluating from the date of the original denial, when all prerequisites outlined in 38 CFR 3.156 Section (c) are satisfied), it triggered my ‘Request for Revision’ due to the presence of an alleged CUE.  I have included all supporting documentation in my file, however, I don't know what form to use to submit a C.U.E. claim.  

Some of the research I've done says to use the 20-0996 for Higher Level Review.  If my interpretation and understanding is correct, that form is only used when the decision has been within the last 12 months.  I also saw form 20-0995 mentioned for a Supplemental Claim.  My interpretation of that form is when there is new evidence to present.  My claim is based on a C.U.E., but no new evidence...so you can see my dilemma.  If anyone can offer some assistance, I'd greatly appreciate it!  Thanks to you all for your service to our country.

Regards,

Harvey Ryan

[brokensoldier244th]

If you have no new evidence and you want the decision reviewed De Novo, then you use the -0996. 

 

CAS

[broncovet]

Great question, Harvey, and welcome to hadit. 

    Based on what you posted, I agree that, if the VA denied you, then you submitted "new service records", you should get the earlier effective date.  But there are some catches, too.  You need to read "all" of 3.156, because there can be "gotcha's" in there.  "Gotcha's" are in BOLD.  

    I remember a discussion on this very issue.  Im not sure VA even agrees on which form to use for a CUE.  The VA does not have a seperate CUE form.  The consensus was to use either a 21-4138 or a Supplemental claim form.  

    I will try to find the link for you.  

    There are "at least" 2 types of CUE.  

1.  Cue on a claim finally adjuticated.  This means a claim adjuticated "more than a year" ago which has not been appealed AND, has not been reopened with new evidence.  

2.  Cue on a claim which is not final.  Berta is good at these.  Generally, you can appeal a claim under a year ago by filing a nod, but, there is some chance that your Cue will fly and get you benefits sooner than an appeal would.  

     I wont go into Cue on BVA appeals at this time.  But that can happen also.  

     

      

[broncovet]

I humbly disagree that a 0996 should be used to file CUE.  But the form is here, so read the directions yourself:

https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf

   The following directions with the 0996 is why I dont recommend them for use with CUE:

Quote

Use this form to request a HIGHER-LEVEL REVIEW of the decision you received. A HIGHER-LEVEL REVIEW is a new review of an issue(s) previously decided by the Department of Veterans Affairs (VA) based on the evidence of record at the time VA issued notice of the prior decision. The higher-level reviewer WILL NOT consider any evidence received after the notification date of the prior decision. This form must be submitted to VA within one year of the date VA provided notice of our decision. For additional information on the HIGHER-LEVEL REVIEW process or a list of review options that allow VA to consider new evidence and how to file, visit https://www.va.gov/decision-reviews

As I underlined, you have gone over a year, so the HLR form should not be used.  CUE can be filed anytime, HLR must be filed within a year.  

Based strictly upon VA's "directions", above, you "could" use an HLR (0996), but only if you are filing a "type 2" Cue, which I described in the previous post.  That is, if your claim decision was in the past year.  You indicated that was not the case.  

      All this "assumes" who ever wrote the directions for the HLR "knew what they were doing", and that is not always the case!!!  But we should be able to follow the directions VA has with the form!!!

Edited June 24, 2020 by broncovet

[Harvey Ryan]

Thanks for the replys.  I did find that the 0996 was denied due to more than a year.   Broncovet...my claim fits the first option you mentioned: "1.  Cue on a claim finally adjudicated.  This means a claim adjudicated "more than a year" ago which has not been appealed AND, has not been reopened with new evidence."    Would it be a good idea to submit with both the 0995 AND the 21-4138 just to cover all bases?  I have spent a lot of time going over 3.156 to look for all of the 'gotchas.'  Do you have any specific ones that you would advise to pay particular attention to?  Thanks again for your help and assistance.

[Berta]

Some here have suggested CUE be filed on a 21-526 EZ form-

We have had some successful Cuerinos, here ,after the March 2015 date changes, who used- I think, the 21-526 EZ.

As a widow I had to file 2 CUEs on the new survivors accrued forms.

Please go over my templates for CUE claims here carefully.

Cue is not technically a claim, it is as the BVA has said, a 'frontal assault' on a VA decision.

As a tactical warfare student, I LOVE that description and practice enfilading fire power- meaning I make it perfectly clear , as briefly as I can how they made a clear and unmistakable error to my detriment.And I add the regulations they broke.I surround them with Evidence.

Legal evidence only -for CUE.

In my pending CUES,I even went through years of older VA rating schedules so I could tell them  with my mathematical  facts, how much they owe me.

I did that on my AO HBP claim as well.

This is an important thing I mentioned here before but it bears repeating.

A surviving spouse MUST file within one year after the veteran spouse's death to get the best EED possible for a DIC claim, and also for an accrued claim.

An accrued claim arises from continuing a veteran's claim that was pending at death.

The only Exception to that Is a Nehmer claim, and also Blue Water Navy claims, that are granted due to AO exposure per HR 299 - available here in our AO forum.

A survivor can still succeed on DIC , if they file after that one year has passed,  but the EED will not be back to the date of the veteran's death.

However, if not a  Nehmer claim, or BWN AO claim,  where the surviving spouse filed after the one year following death, it  will NOT

                                  be accepted as a valid by the VA.They will deny it- 

"In this regard, the RO also denied the Appellant’s claim, in part, because her claim for accrued benefits, received in January 2016, as well as a claim for substitution, received in April 2016, were not timely in that they were not received within the one year period after the death of the Veteran’s surviving spouse in November 2014. After the death of a claimant, if there was a claim or appeal pending at the time of death, then an eligible person may apply for accrued benefits, as discussed above. Alternatively, where the claimant at issue died after October 10, 2008, as in this case, an eligible person may apply to be a substitute claimant in order to complete processing of the claim or appeal and obtain benefits. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (a).

In either case, the application must be received within one year after the death of the claimant, and the applicant must be an eligible person. Id. An application to be a substituted claimant also may only be made by a person eligible for accrued benefits under 38 C.F.R. § 3.1000 (a). 38 C.F.R. § 3.1010 (a)."

https://www.va.gov/vetapp19/files1/19103890.txt

This was not a Nehmer claim.

When I get time I will repeat this in our DIC forum again as I notice many 'guests' read that forum .

 

 

 

 

 

 

Edited June 24, 2020 by Berta
typo

[broncovet]

The VA "kind of" gives some direction on the filing of a Cue on VA form 4597, which the VA is supposed to send with decisions to let you know of your options to appeal.  

https://www.va.gov/vaforms/va/pdf/VA4597.pdf

THIS is what the "VA says" on this form regarding CUE:

Quote

How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time.

The regulation the VA cited in the above quote regards filing CUE on BOARD decisions, however, not VARO decisions.  

https://www.law.cornell.edu/cfr/text/38/20.1400

NOthing in the above requires the CUE be filed on any specific form.  However, its possible its "different" with filing Cue on a VARO decision.  

The 21-0998 form recently came with VARO decision I received.

https://www.vba.va.gov/pubs/forms/VBA-20-0998-ARE.pdf

This document does NOT list a "required form" to file a Cue, BUT it only lists "CUE" as an option "If" you did not file the NOD on time.  

 

    YOU SHOULD BE SAFE if YOU explicitly follow VA's own directions contained in these documents.