I think I have CUE

[Berta]

We have had vets here who are really on the ball when they are sure a CUE has been committed by VA, in a past or new decision.

We also have had vets here or their family members thinking they have basis for a CUE claim , but they cannot define the legal error VA might have committed, or worse yet, they have not read any info in this forum.

The last issue I had tried to help with made it very clear to me that my explainions of why they did not have a CUE, went unheeded, as well and I told them  how they would need to support a Valid CUE with evidence the VA had in their possession at time of alleged CUE.

This involved 8 pages of 31 posts and another thread  with 12 pages- and obviously many more posts. I am completely burned out by those types of CUE posts.

If you have a CUE question please tell us the "LEGAL error" you believe the VA broke.

Some are pretty obvious legal errors, easy to agree with based on what we can read here and are blatant violations of VA case law.

But most of them are far more difficult to interpret.

I can tell when anyone here does not take the time to read the info in this forum on CUE regulations.

It is not fair to us who would be willing to help but cannot take the time to do that-and these EED CUES involve ,in many cases, a stack of medical records, and C file info and none of us have the time to do that.

Just let us know. if you think: you have a CUE, what the legal error is, the actual citation from 38 CFR, and then post the decision (redacted for name, c file #)

so we can read the evidence list in that decision and the VA rationale they used  deny.And the rating sheet too.

EED CUES ,( this is the last time I will repeat this),

are based on finding a CUE in a past VA decision.

Meaning an award was made, but the same disability had been denied in the past.

If a denial in the past should show this as a NSC ratable disability ( meaning 10% NSC or more) on the past rating sheet ,but

if the VA ( by a thorough reading of the veterans c file and medical records), should have awarded the claim in the denied decision, because 

 the VA ,at time of that past decision, had ample evidence from the C file and medical records of a ratable disability under SC and not NSC- that would be a valid CUE claim.

You also must consider the regulations and diagnostic codes etc at time of the alleged CUE.These are binding on the CUE even if those regulations changed in time.

A CUE ,in any decision,should be prime facie- meaning obvious- and, with a good understanding of what a CUE is,( there are winners here) 

it should never become a long rendition , just follow the CUE templates here and make it as short as you can using documented  medical facts and legal citations of the regulation they broke, that would support the CUE.

 

 

 

 

 

 

 

[john999]

Way back yonder I had TDIU P&T and then I got another 60% on top of the TDIU.  I had to file a CUE because the VA did not grant me SMC S.  You can never assume the VA will do the right thing.  They could just care less about us vets.

[Buck52]

As I understand it  there's two ways to get SMC S H.B...

THE 100% VET Plus another separate & distinct  claim for 60% or higher to infer the SMC S H.B. and then there's the TDIU VET

 When vet IU they suppose to infer you the SMC S H.B. at the time they adjuicate the TDIU claim

Because of the Howell and Nicholson rule (MARCH 23 2006)  a TDIU VET IS CONDIDERS TO BE 100% OR BEING PAID AT THE 100%Rate.and can't leave home for work. they should infer the SMC-S Housebound at the time he gets the TDIU RATING...depending also on the severity of the condition/disability and it will not improve in the veterans life time.

WHAT I don't know is will they go back further than the Howell vs Nicholson Ruling  on March 23 /2006?

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014868/Howell-v.-Nicholson,-Mar-23,-2006,-19-Vet.App.-535#:~:text=What the case is about,§ 1114(s).

 

 

Edited May 17, 2021 by Buck52

[Buck52]

Ms berta quoted

''Buck I think you asked your question here before.''.... yes mam I did.

''If I ever find my answer to it,I will post it for you''

Thank you Ms Berta   your a Veterans Sweetheart.

[Vync]

The knowledge @Berta and other elders shared helped me win a CUE for an initial rating I received. For those who want to know my approach, I'll explain it briefly below.

During my entrance exam, I noted having allergic rhinitis, but the doctor noted my sinuses were normal. It got severely worse during service and I filed for aggravation right after I got out. The decision letter awarded 30%, but reduced it to 20% merely because the C&P examiner noted I had it prior to service. 
  I argued that the 38 CFR 3.322(a) said that aggravation ratings reflect the degree of disability over and above the degree of disability existing when entering the service. It also required deduction of the level of disability existing when entering the service from the current level of disability in terms of the rating schedule. I quoted the rating criteria and the C&P exam report. I explained the rating criteria made no mention any ratable level of disability just because of having it before service. I explained the benefit if the error had not occurred, which was an increase in the initial rating percentage for the disability.
  I only referenced records the VA had in their possession, laws and regulations which were in effect at the time the decision was made. It took a bit of work to dig up the versions of those laws and regulations via the Federal Register. Benefit of the doubt could not be argued.
  I filed a CUE and wo, which resulted in correction of the initial allergic rhinitis rating percentage from 20% to 30% from 1995 through 2008. That also increased my combined rating from 40% to 50%, which was significant.

I have a second CUE at the BVA waiting to be assigned that. I submitted at the same time as the preceding allergic rhinitis CUE, but this one was for an incorrect 10% rating for TMJ which should have been 20 or 30%. 
  The VA's initial decision relied solely on 38 CFR 4.59 instead of properly applying DeLuca. I also included the relevant C&P exams, laws, and regulations as of the initial decision.
  The HLR senior reviewer agreed with my CUE and said I was good to go pending supervisor approval. However, the supervisor failed to mention DeLuca or why it was not applicable. They just rubber stamped the 38 CFR 4.59 quote from the initial decision. It will be interesting to see what happens at the BVA.

[Berta]

Vync, your CUE is an outstanding example of what a CUE involves!

It often takes a lot of work and involves records that none of us have the time in hyperspace to review.

But we are always our best advocates on our claims and you took the exact steps to succeed.

Yes it will be interesting to see how BVA handles the DeLuca citation.

It is well established VA case law!

 

[Justaskpat]

On 5/16/2021 at 8:06 AM, Berta said:

I apologise to you

No need for apologies Berta. I am just thankful you are there for us when you do have the time.