Some vets are willing to go over the CUE regulations, some don’t.
It will help if you can attach the decision that you feel holds a CUE and the evidence list.
Cover your C file #, name address prior to scanning it.
Tell us exactly what you think the Legal error is in the decision.
This goes for old denials or awards as well as for recent denials or awards.
But better yet, ask your vet rep or VSO to help you-they have more access to your info than we can get.
Regulations:
(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.
(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.
(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(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 three prongs have never changed for any type of CUE, Filed with a RO due to a RO decision.
(BVA CUES require a motion-as stated above )
The 2013 post said this but it has changed-
1.a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)*****NOTE_ This has changed!!!!!! Since 2013 when I first posted this info-
( The new regulations are in M21-1MR- I have won CUEs on VARO decisions, that I filled within a few days after getting the RO decision.)
CUE can be filed at any time, even on a recent RO decision, whether award letter or denial.
BVA CUEs require a Motion as stated here and within the pdf, link above.
2.a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)
3.A formal request that VARO CUE the decision, must be supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting their VA RO to CUE. This type of request at the Regional level can be made at any time. They will need a dated copy of the decision being Cued.
If you feel the CUE is within the wrong diagnostic code, you will need evidence, that VA had in their possession, when they gave the wrong diagnostic code.
Many diagnostic codes have changed in the past years so best to check what the appropriate codes were when you filed the claim you feel contained a CUE in the decision.
(To add, use the recenttemplate citations here at hadit for the proper wording of the CUE request.)
There are over 15,000 posts here on CUE.
I regret I am tired of repeating info that I posted here Many times before.
Get a VSO to help you with the CUE- preferably the one who held your POA on the decision you want to file CUE on.
The Three prongs of CUE above must be satisfied, to succeed.
Some claimants here have willingly studied all they could on CUE before posting their questions on it.
But most claimants here over the past 20 plus years do not take the time to research all the CUE info here.
They need a vet rep or VSO -or a lawyer,(if they can prove to the lawyer thatretro is quite possible due to proving the three prongs of CUE )to handle their potential CUE claim.
This is enough information to help anyone help themselves, to determine if they have a valid CUE claim.
Some of us get burned out by the repetition of many facets of the VA claims process.
And any vet rep or VSO should know how best to help with a potential CUE.
Often they require proof of established medical evidence-meaning private and VA medical records-in VA’s possession at time of the alleged CUE….. we cannot analysis stacks of medical records here.
Also 1151 CUEs ( I had many personally) rest on when the 1151 claim was filed, or reopened.
A re opened 1151 claim cannot provide a better EED, unless the original denial was for the exact disability that the 1151 was awarded on.
"c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date."
Unfortunately , because of that regulation many claimants should also file FTCA on a SF 95, if they learn of the malpractice and file within the specific statute of limits in their state.If not they should file 1151 within one year of the negligence/malpractice incident.
If they succeed in both FTCA ( and a 1151 claim) for any disability, they can also try to prove direct SC for the same disability, and that would prevent any FTCA/1151 offset. I might be the only claimant who did that- maybe there is one more. Nothing is impossible.(No FTCA offset-the VA refunded it)
Most of my personal CUEs involved violation of 38 CFR 4.6. I posted that reg many times, it is available under a search.
Question
Berta
We get CUE claims questions from time to time.
Some vets are willing to go over the CUE regulations, some don’t.
It will help if you can attach the decision that you feel holds a CUE and the evidence list.
Cover your C file #, name address prior to scanning it.
Tell us exactly what you think the Legal error is in the decision.
This goes for old denials or awards as well as for recent denials or awards.
But better yet, ask your vet rep or VSO to help you-they have more access to your info than we can get.
Regulations:
(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.
(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)
(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.
(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)
If it is a Regional Office decision, there are templates here for that type of CUE
If the decision is from the BVA, then a Motion to revise must be filed with the BVA .
There is more info to that here and there should be a Motion template here under a hadit search.
The BVA recommends getting a POA to help with any Motion to Revise at the BVA.
This is what you need to read for BVA decisions:
https://www.va.gov/vaforms/va/pdf/VA4597.pdf
More here:
https://community.hadit.com/topic/83150-38-usc-5109a-cue/#comment-502077
A Cue is this:
(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 three prongs have never changed for any type of CUE, Filed with a RO due to a RO decision.
(BVA CUES require a motion-as stated above )
The 2013 post said this but it has changed-
1. a legal error in a decision challenged DURING the appellate period (meaning the day of the decision and within the NOD timeframe)*****NOTE_ This has changed!!!!!! Since 2013 when I first posted this info-
( The new regulations are in M21-1MR- I have won CUEs on VARO decisions, that I filled within a few days after getting the RO decision.)
CUE can be filed at any time, even on a recent RO decision, whether award letter or denial.
BVA CUEs require a Motion as stated here and within the pdf, link above.
2. a legal error that manifested an altered outcome to the claimant's detriment (ie improper retro amount)
3.A formal request that VARO CUE the decision, must be supported by copies of probative legal/medical evidence that was in VA's Possession at time of the decision that the claimant is requesting their VA RO to CUE. This type of request at the Regional level can be made at any time. They will need a dated copy of the decision being Cued.
If you feel the CUE is within the wrong diagnostic code, you will need evidence, that VA had in their possession, when they gave the wrong diagnostic code.
Many diagnostic codes have changed in the past years so best to check what the appropriate codes were when you filed the claim you feel contained a CUE in the decision.
(To add, use the recent template citations here at hadit for the proper wording of the CUE request.)
There are over 15,000 posts here on CUE.
I regret I am tired of repeating info that I posted here Many times before.
Get a VSO to help you with the CUE- preferably the one who held your POA on the decision you want to file CUE on.
The Three prongs of CUE above must be satisfied, to succeed.
Some claimants here have willingly studied all they could on CUE before posting their questions on it.
But most claimants here over the past 20 plus years do not take the time to research all the CUE info here.
They need a vet rep or VSO -or a lawyer,(if they can prove to the lawyer that retro is quite possible due to proving the three prongs of CUE )to handle their potential CUE claim.
This is enough information to help anyone help themselves, to determine if they have a valid CUE claim.
Some of us get burned out by the repetition of many facets of the VA claims process.
And any vet rep or VSO should know how best to help with a potential CUE.
Often they require proof of established medical evidence-meaning private and VA medical records-in VA’s possession at time of the alleged CUE….. we cannot analysis stacks of medical records here.
Also 1151 CUEs ( I had many personally) rest on when the 1151 claim was filed, or reopened.
A re opened 1151 claim cannot provide a better EED, unless the original denial was for the exact disability that the 1151 was awarded on.
"c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date."
https://www.law.cornell.edu/uscode/text/38/5110
Unfortunately , because of that regulation many claimants should also file FTCA on a SF 95, if they learn of the malpractice and file within the specific statute of limits in their state.If not they should file 1151 within one year of the negligence/malpractice incident.
If they succeed in both FTCA ( and a 1151 claim) for any disability, they can also try to prove direct SC for the same disability, and that would prevent any FTCA/1151 offset. I might be the only claimant who did that- maybe there is one more. Nothing is impossible.(No FTCA offset-the VA refunded it)
Most of my personal CUEs involved violation of 38 CFR 4.6. I posted that reg many times, it is available under a search.
.......................................................................
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To add: This recent BVA decision is astonishing- most veterans would have given up---- https://community.hadit.com/topic/83347-bva-cue-38-cfr-3156-retro-back-to-1985/ This decision say
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