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.

 

 

 

 

 

 

 

[Vync]

On 5/18/2021 at 6:04 AM, Berta said:

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!

I can definitely say it required a great deal of research. I looked at at it from my perspective and then from the VA's. Probably the worst part was digging back through old copies of the Federal Register.

 

Here is the error. Here are the documents. Here is how the VA failed to follow the law/reg/ruling. Here's what would have happened if not for the error.

 

Sounds simple, but it is far from it.