Clear Unmistakable Errors

[Treymon]

TWIMC: I am trying to file a claim based on a Clear Unmistakeable Error. My back was injured during an accident on a ship as were my knees. All of this is in my service medical record. I can't find the forms to do this and was needing help on where to get the forms. The e-benifits site keeps indicating that this feature is not available anymore and I was wondering which site I should go to to get this accomplished. 

[brokensoldier244th]

So you want to file a supplemental claim requesting review of a denied decision? 21-0995 or 0996 (0995 if you have more evidence to submit, 0996 if you just want it reviewed) or you can file a full appeal. Claims filing has pretty much moved to VA.gov. 

[kanewnut]

29 minutes ago, Treymon said:

I am trying to file a claim based on a Clear Unmistakeable Error

 

30 minutes ago, Treymon said:

I can't find the forms to do this and was needing help on where to get the forms.

There is no form for a Clear and Unmistakeable Error. 

A search for M21-1 CUE will return - 

M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions - Topic 4

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 had a nightmare time trying to get the Mensa candidates at the intake center in Janesville to accept my CUE. At first they treated it as correspondence. Multiple calls and letters and I get multiple answers from VA individuals with no idea how their own VA system works. I created this cover page for sending in a CUE. I printed it out in very big letters and put it as the first page of my CUE. 

                    CUE 

                    FILING

III.iv.2.B.4.d.  there is no specific claim form required to request revision of a decision based on CUE

[brokensoldier244th]

Ive seen them filed on Supplemental forms before- they get corrected since, as you said, there is no 'certain form', however, a 526 or Supplemental form comes in and is automatically cataloged during scanning (via OCR) as a claim, rather than "general correspondence". 

 

https://cck-law.com/blog/cue-claims-how-to-challenge-a-final-decision/

[Berta]

We have templates for CUE claims here and some winners- in our CUE forum.

This is one I wrote for a member here in 2009-

He won the CUE.

Department of Veterans Affairs                                                                         ,2009

Va Regional Office (344/00)

Federal Building

11000 Wilshire Blvd.

Los Angeles, CA 90024-3602                                                    C File# xx xxx xxx

 

 

 

 

To whom it may concern:

 

            This is a claim of Clear and Unmistakable Error (CUE) in regards to three final unappealed decisions made by the  Los Angeles VARO within June, 1969 decision, March 1972 decision ,and within administrative letter dated  1990 continuing the manifested altered outcome from the erroneous 1969 decision, to my detriment.

 

            The initial erroneous 1969 decision contained CUE that manifestly altered the outcome of the original claim (which I filed within one year after my discharge) to my detriment and caused the subsequent erroneous denials of 1972 and 1990.

 

            This CUE claim is filed under auspices of 38 USC 5109 and 38 CFR 3.105.

 

            The BVA awarded service connection within BVA decision dated 08/20/08 thus:

 

                        “Findings of Fact

            

4.     The veteran's current psychiatric disorder, variously diagnosed as depressive disorder and bipolar disorder, as likely as not, originated in service.”

 

(page 2 0f 9 BVA decision dated August 20,2009)

 

                       “ORDER

 

                       Service connection for a psychiatric disorder,to include depressive disorder and bipolar disorder is granted.”

 

(paragraph 2 of page 9-BVA decision dated August 20,2008)

 

                                           Legal Errors

 

1.     Within regulations in 38 CFR, Chapter 1,Part 3 adjudication, Subpart A, Section 3.303 -Principles of Service Connection-the VA is supposed to administer the law with both a “broad” and “liberal” interpretation consistent with the facts of each case. The regulation includes the fact that all available medical evidence is pertinent to the outcome of the VA's determination as to service connection. 38 CFR 3.303 (d) (enclosed as Exhibit A 2 pages)

 

2.     within CFR under 38 CFR 303 (b) no determination at all was correctly made as to a finding of chronic disease, yet the medical evidence as listed within the BVA decision clearly showed

that I had a “combination of manifestations sufficient to identify the disease entity” and “ sufficient observation to establish chronicity.”

 

3.     The CFR printout I have enclosed-as Exhibit A  clearly reflects that this regulation within Section 3.303 et al goes back to 26 FR 1579 dated February 24, 1961 and therefore was the regulation at time of alleged CUE in 1969 -which caused subsequent CUEs in 1972 and 1990 by the Los Angeles VARO-manifesting an altered outcome of the claim to my detriment.

 

4.     The VA also committed CUE by their failure to properly apply the regulations within 38 USC 1111, and 38 USC 1153 regarding their erroneous finding of pre existing disability ,not aggravated by service. The  Los Angeles VARO decision enclosed as Exhibit B dated June 17^th 1969 clearly shows that no in service medical evidence was used to render this decision and the subsequent Rating Decision dated March 2, 1972 (enclosed as Exhibit C)  states that NO exam was given to base the findings for this denial on-acknowledging  the psychiatric disability as Diagnostic Code 9405, NCS with no rating for it.

 

       5    A March 1969 Memorandum from the Medical Board (referenced on page 6 of the BVA award of August 2009) continues the erroneous 'pre existing' finding and without that clear error in light of all of the medical evidence of record, the memorandum could have read:

  

            'the origin (of the diagnosis) was not due to the veteran's own misconduct,was incurred in the line of duty' when the erroneous applications of 38 USC 1111 and 38 USC 1153 are eliminated.

 

6.     I have enclosed the VA Office of General Counsel Precedent Opinion as referenced in The BVA decision I received which reads in conclusion:

           

            “Held:

 

A.  To rebut the presumption of sound condition under 38 U.S.C. § 1111, the Department of Veterans Affairs (VA) must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches.  The provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C. § 1111 insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service.            Section 3.304(b) is therefore invalid and should not be followed.

 

B.  The provisions of 38 C.F.R. § 3.306(b) providing that aggravation may not be conceded unless the preexisting condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111.  Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service.  The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111.

 

 

 

 

Tim S. McClain”

 

 

            I request that this CUE clear be properly adjudicated and that I receive a proper award and rating for my service connected disability of a psychiatric disorder to include depressive disorder and bipolar disorder, with retroactive disability compensation back to the day after my discharge,in April 1969.

 

 

Exhibits:                                                                          Respectfully,

Exhibit A 38 CFR 3.303 2 pages

Exhibit B LA RO decision dated June 17,1969 1 page

Exhibit C LARO decision dated 3/10/72

and Rating Sheet 3/2/72 21-6796     2 pages

 

BVA decision August 20, 2009 available at http://www.va.gov/vetapp08/files4/0828310.txt

 

VA Office of General Counsel Precedent Opinion # 3-2003 11 pages

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He got Mega retro.

Most of my personal CUEs have been much shorter.

Many are in our CUE forum. You cab do a searh under CUE Berta or CUE 38 CFR4.6 and hopefully much will pop up.

The legal error must be specifically defined, and the decision copy and date should be included in the CUE.It needs to be filed with  the VARO that decided the claim .

The main legal error that VA broke many times in my case was 38 CFR 4.6.

The error must have had a manifested outcome that was detrimental to you- meaning if the legal error had not occurred theVA would have owed you CASH.