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

[kanewnut]

A search of m21-1 CUE will get you some good stuff to read through. 

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.

This is what I put as a cover page on the last CUE I filed - 

I filed a CUE back in August. It was treated as correspondence. I later filed on 21-526EZ and 20-0996. VA denied the 20-0996 and later sent me a letter telling me to send in a 20-0995 along with other forms. I sent this in telling them this was for a CUE. It became a big mess and still is. The last CUE I sent in I used the cover sheet above. This one they accepted without the prior nightmare.

IMHO VA FORM 4597 only deals with BVA decisions. So motion to revise is only for BVA decisions.

 

[Buck52]

I personally would never file a CUE without the scoping of Ms Berta and broncovet expertise.

They both have the knowledge & experience in preparing CUE Claims.

Edited June 24, 2020 by Buck52

[Vync]

@Harvey Ryan, As of today, the VA still does not require a specific form for a CUE, but does require it to be submitted in writing per VA's procedure manual M21-1. It states there is no official form to use for a CUE, but it does need to be submitted in writing and there are some requirements you would need to include. If you are within the standard appeal window, you could simply file it on the HLR form, but I recommend you submit additional documentation describing the error clearly.

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#4

Quote

M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions
Article ID: 554400000015808

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.

I submitted two CUE's last year without using the supplemental or HLR forms. When I was preparing to submit my claim, I called the 1-800-827-1000 numerous times, spoke with different VSO's, and even looked it up online. In every case, I was told to submit the CUE using this or that form. Nobody even knew about the VA regulation indicated above.

I was not in an active appeal window, but was CUE-ing decisions from about 20 years ago. It took five months for the VA to complete. The VA granted one, but denied the other (not on the merits). It turns out my request was worked by the team who does supplemental claims, but should have been routed to the team that handles HLR's. I appealed the denial using the HLR form just to ensure it gets routed to the correct team. I also included a separate CUE to cover my bases.

On the HLR form, you can request the VA call you to discuss your claim, which is what I did. When they call, I plan to ask them if they have already reviewed what I submitted. If they have, I am going to ask them if they agree. It might be a very short call if they did their job correctly.

A while back, the VA used to allow reconsiderations within 12 months from the date of the decision. A reconsideration was not an official appeal, but allowed a veteran to tell the VA about their mistake. If the VA did not respond by the end of the appeal window, the veteran was required to formally submit a notice of disagreement or they would risk losing their effective date. I used this a couple of times to get some errors fixed really fast. I had one that took three weeks and another took about five weeks. You could even file a CUE on a letter and might be lucky enough to get a quick turnaround. All that changed early last year when the AMA went into effect when they removed the ability to file reconsiderations. After about two and a half months, I am still waiting for the VA to call me. I checked va.gov and it indicates it will take 4 to 5 months, so I'm back on the waiting wagon.