Would this fly as a CUE Claim

[JKWilliamsSr]

In 2002 my back claim was denied by the VA.  The reason for the denial was that even though I was seen for back complaints (9 times)  There is no diagnosis of a chronic disability.  

Here is why I think this could very well be a CUE Claim.  The determination of no diagnosis of a chronic disability was may by someone unqualified (VARO or Reviewer) to make that determination.  There is no documentation from a single medical professional in relation to this claim concerning my medical history.   I have seen some case law on this such as Sokowski v. Derwinski that states "Remand was required of the veteran’s claim for service connection for actinic keratoses given that medical evidence contrary to the veteran’s medical evidence was lacking in the record and the BVA merely relied on its own unsubstantiated medical conclusions in denying the claim."  or Moore v. Derwinski that says "BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions."

There actually is a good bit of case law on unsubstantiated medical opinions by the VA and I wondered is my situation could apply. 

[broncovet]

You posted:

Quote

My entire argument on the effective date on both feet and back will be 38 CFR 3.156(c).  

Exactly.  Im trying to help here.  If "you meet BOTH the cue criteria AND the criteria for 3.156 c, " then you would be advised to persue new evidence reopen because its easier. 

I could bicycle, or drive to Cincinnati.  But I probably wont bicycle there, because its much easier, (and probably  even safer) to drive.  

In a similar manner, to get to 100 percent, you could try CUE or 3.156, but its easier and safer to go 3.156.  

Specifically, you get to keep the valuable "benefit of the doubt" with 3.156, but, with Cue, you give that up and must meet a higher criteria.  

For most Veterans, its tough enough to just win benefits, most of us dont want to "press it" by putting the extra weight of Cue on "just to see if we can do it", like putting weights on doing pullups.  

 

[pwrslm]

You get one shot when filing CUE with BVA. If you word it wrong, and they reject it, they can ignore any further action you take on it.

Be aware that CUE claims to VARO and BVA are very different.. At the BVA, Veterans only have one shot at a CUE claim. If the CUE is denied by the BVA the Veteran loses the ability claim a CUE on that decision. Like Broncovet said, file based on new evidence because you reserve the CUE until the last possible moment.

[Berta]

I respectfully disagree with CUE being a one shot deal.

This has been the mantra of many incompetent vet reps for years- actually for decades- because they have no idea what the are talking about. Or they are too lazy to read the regulations that control CUE.

Also it has become  obvious to me that many here opine on CUE without any regard for the good info in the CUE forum, that  I have been posting here for years ( actually  decades)

I have posted many BVA decisions here that 'dismiss' a CUE claim "without prejudice to refiling". That means the veteran or survivor needs to re shape the CUE to fit into the regulations.

In the initial post , the veteran should scan and attach the decision and evidence list that denied his claim.

He mght have a chance of CUE ( which I do not see yet) or a chance under 3.156 or even under both separate theories.(filed separately)

Here is a recent example of what I mean:

https://www.va.gov/vetapp21/files8/a21013880.txt

In part:

"ORDER The motion to revise or reverse based on clear and unmistakable error (CUE) a June 7, 1983 decision of the Board of Veterans' Appeals (Board) that denied service connection for a back disorder is dismissed without prejudice to refiling. FINDING OF FACT The motion to revise the June 1983 Board decision on the basis of CUE does not set forth with clarity or specificity the alleged error of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. CONCLUSION OF LAW."

In that brief part of the decision the BVA stated the exact criteria for CUE that the veteran did not meet, but with some serious attention to CUE regulations the CUE might succeed.

If one searches CUE here you will find the "one shot deal" mantra-from a few who never are able to support that unfoundeed statement ,with any VA case law or regulation whatsoever.

Some CUEs fail due to this criteria:

 

"Examples of situations that are not CUE include: (1) a new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision; (2) a failure to fulfill VA's duty to assist the moving party with the development of facts relevant to his claim; or (3) a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d). CUE also does not encompass the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. See 38 C.F.R. § 20.1403(e)."

https://www.va.gov/vetapp21/files5/21028839.txt

It is an interesting case:

"As explained above, the record included a clear diagnosis from multiple VA medical examiners that the Veteran did have a diagnosis of a TBI.  While the examiner who conducted a July 2012 psychological examination found no such diagnosis, this evaluation was conducted by a psychologist and not a medical doctor.  Rather, both TBI-specific medical examiners did find that such a diagnosis was proper.  The Board also now finds that it is undebatable that the Kansas incident did occur in service.  As to the final element of a nexus, the Board observes that the sole medical opinion evidence directly attributes the Veteran's TBI diagnosis to that same incident in Kansas.  Although the examiner was mistaken regarding the date of that incident, there was no competent evidence of record contradicting this opinion that the Veteran's TBI was the result of the Kansas incident that occurred in service. 

Accordingly, the Board finds that had the August 2017 Board not made an undebatable error in determining that the Kansas incident did not occur in service, a manifestly different outcome would have occurred and it would have found that all the elements for service connection for a TBI would have been met.  As such, the Board finds that the criteria for revision of the August 2017 decision have been met.  It is revised to grant service connection for residuals of a TBI."

and: ( note that this was Motion to revise a prior BVA decision):

Ultimately, the Board in its August 2017 decision found that the evidence weighed against a finding of an in-service injury or incurrence of a TBI. As such, it did not directly address the question of a nexus. The Board notes, however, that it did appear to implicitly provide a strong opinion that that Kansas incident was the cause of the TBI, as explained below. In the August 2019 motion for revision of that decision, the Veteran's representative took issue primarily with what he considered to be a glaring factual error in the March 2017 VA medical examiner's recitation of the service treatment records. The motion argues that the examiner (as well as a prior VA examiner) had made a fundamental misreading of the service treatment records by attributing the Kansas head injury to March 1969, rather than having occurred in service. The Board now agrees."

The veteran succeeded!

Here is another 2021  CUE beauty:

"ORDER

Entitlement to an earlier effective date for the grant of a 50 percent rating for an acquired psychiatric disorder is granted from August 21, 1968 to February 8, 1974.

Entitlement to an earlier effective date for the grant of 100 percent rating for an acquired psychiatric disorder, to include on the basis of clear and unmistakable error (CUE) in July 1970, March 5, 1974, April 1978, March 25, 1980, March 1983, May 1988, November 1990, January 1992, November 2017 and January 2020 rating decisions is denied. 

Entitlement to an increased rating of 50 percent from July 1, 1985 to February 14, 1990 for the acquired psychiatric disorder is granted.

Entitlement to an earlier effective date of May 8, 2017 for the grant of a 100 percent rating for an acquired psychiatric disorder is granted.

Entitlement to special monthly compensation (SMC) based on aid and attendance or being housebound is granted."

It is a long case, but it shows that the BVA CAN READ, and that the veteran did his homework on CUE. A fabulous victory.

https://www.va.gov/vetapp21/files9/a21014692.txt

I suggest we all get up to speed on CUE.The VA makes more CUEs than we will ever know- because veterans and their survivors do not challenge them. And/or they have POA representation that is faulty.

 

 

 

 

Edited November 22, 2021 by Berta
carpel tunnel syndrome maybe from repeating myself here so much

[broncovet]

Thanks for chiming in on this, Berta.  As always, your Cue advice is impeccable.  

Of course, it would take a review of the cfile to determine if either CUE or 3.156 applies.  

I agree that Cue is not a one shot deal, I know of no regulation preventing, at a minimum, multiple CUE theories on a single claim. 

Its true, of course, that Stare Decisis applies..its a poor use of judicial resources to apply over and over again to try to find a rating specialist who was more Veteran friendly than the last one who denied the Veteran.  But this is not limited to CUE.  

Further, VA specifically permits Vets to "re apply" under certain conditions, such as new evidence.  

[JKWilliamsSr]

UPDATE:

My appeal is complete (I believe).  I logged into the VA website and saw that that the BVA granted me service connection for Diabetes, Sleep Apnea, Bursitis, Bursitis (yes twice), and degenerative arthritis.  When I would periodically check to BVA it always had those things listed. Made no sense because my appeal has no mention of bursitis.  If fact I do not have an actual diagnosis for bursitis.  It is not listed in my IME or IMO.  I have never even filed a claim for bursitis.  Had to look it up because I did not know what it was.

My guess they are just random identifiers that someone put in when they added my claim in the site.  In my experience the "issues" part of the VA website never seemed to actually match what I was claiming. 

I am attaching a snipit of what my attorney submitted on the form.

[pwrslm]

Hi Berta,

This is where I got the info that CUE can only be submitted once. Clarification that if the CUE is denied and appealed, then the following applies:

 

The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

 

Can you explain?