Please Check This Draft Cue Letter....berta, Vike, And Others

[RockyA1911]

I have a draft of a CUE letter I intend to submit. I wanted to check with the pro's on CUE such as Berta and others here on hadit. Is this format good enough once I put my name, VA file number and sign it? It is about a page and a half, double spaced etc. It shows the reg they broke, how it would manifestly have changed the outcome, how the veteran is harmed, and remedy sought.

Please take a look at it fellow hadit members, I may be reading yours someday.

Those with experience with CUE, is this good enough to win?

Thanks in advance. P.S. I will be gone for a few days, be back Saturday.

CUE_6_Mar_2007.doc

Edited March 7, 2007 by RockyA1911

[john999]

Rocky

I think you should state on the top of the CUE that this is not a request for reconsideration. There is a techical reason for this that Terry Higgins discussed. Are you doing it at the BVA or the VARO. I have a CUE at the VARO where the error happened. I had a final decision I never appealed that low balled me and did not consider IU. It has been at the VARO for six months. You must file the CUE where the error occurred. If you went to the BVA and they denied it then you would file at the BVA. If it occurred at the VARO and you did not appeal it then you file at the VARO. This is how I read the regs. My CUE is about 35 years old.

[Berta]

John is correct=good pint to make here when CUES come up-

My RO caused CUE in 1995,1996 ? past decision. I filed CUE claim at that VARO.

In 1996 ? 1997 , the RO and then the BVA denied this claim I had under CUE-

The RO decided it favorably a few years ago but only because the Regional COunsel was contacted and he saw the CUE right away-I never appealed the BVA and should have-RC fixed it all by taking jurisdiction over it but this was unusal situation-never seen this done before.

They sent the $$$-the manifested and altered outcome of the CUE-

Then I had another CUE at the BVA (I think) I have a long history challenging VA decisions at every level-1995-1996????

They denied and I didnt pursue (and should have)

The Buffalo RO filed a Motion at the BVA to re-open this other past denied CUE-

I keep forgetting to call BVA to get a status-

My point- this CUE was denied at the BVA-also---- therefore-

whether I or in this case -the RO did it themselves-with a Motion-for Reconsideration - this still had to be filed at the BVA-since it was on a BVA decision.

I think it is good that we make this point from time to time on CUE claims.

They must be filed against whoever had jurisdiction over the final cued decision.

They can be appealed to the US CAVC if denied at BVA level-in most cases.not all- but most-

Also you can ask the VARO to CUE themselves during an open claims process- I had luck with that-twice

but you have to make very strong argument for this-

I dont recommend it unless your statement on this is very strong-and it reaches the VSM or director-

Edited March 8, 2007 by Berta

[RockyA1911]

Thanks a lot!

I have a few questions and a reply for John.

Berta question?:

"essentially the same evidence granting service connection in rating dated 21 February, 2007, was before the adjudicator at the time of the 25 April, 1977 rating decision of which no decision for the issue of skull loss was provided for in that rating decision. Veteran will continue to appeal until EED of 28 November, 1976 is granted."

That statement will circumvent any attempt the VA could make to try to deny under Constructive Notice of Bell V Derwinski-limiting date July 21,1992.

Where do I insert the Bell v. Derwinski-limiting date of July 21, 1992 does not apply? Right under the paragraph in the sentence or as a separate paragraph? Is there an official cite that must be written exactly the way it is cited in the case other than just Bell v. Derwinski....etc?

John: The CUE was commited by VARO St. Louis, MO specifically. I am no longer in that VARO's jurisdiction. My current VARO is Chicago, IL.

Do I submit the CUE directly to St. Louis or send it to my current jurisdiction VARO in Chicago? I cited in the CUE letter that the CUE was commited by VARO St. Louis, MO in their rating decision April, 1977. Are you saying if I submit the CUE claim to VARO in Chicago, my current VARO jurisdiciton, that it will not count and be ignored?

[Berta]

the question for me- I would just stick this in after the statement you put in quotes- but actually you dont need to-

I just mentioned it so that VA cannot attempt to deny when they see the date of the decision you are cueing.

It just shows them that any Bell crapola used to attempt to deny, as I understand your claim- won't work because the information was clearly in VA's possession at time of alleged CUE.

But it pays to read Bell good- I am sure it is at hadit under a search.

Edited March 11, 2007 by Berta

[john999]

Rocky

No, I think if you did not appeal to the BVA then you file with the VARO. I am not sure if it has to be the original VARO or the one you transferred to when you moved. It is logical to me that it would be your present VARO and not the original since they don't have your C-File. I am just not sure about that part. You are supposed to file the CUE where the error occurred and that would be at the VARO level unless you appealed the decision to the BVA and they made the CUE. My file has always been at the same VARO so I am not sure about transferred Claims.

[RockyA1911]

John,

The draft CUE claim that I have presented here is my initial appeal for anything. There are no previous appeals at all.. The 1977 decision was unappealed. After all, how can you appeal a decision of service connection for the skull loss disability if there never was a decision provided at all one way or the other? You can't appeal unless you received a denial for service connection of skull loss, right?

This is my first and initial appeal and the CUE was made by VARO StL, in April of 1977.

Berta:

I can't locate the "Bell v. Derwinski" decision. I have located a bunch of other cases that cited the "Bell v. Derwinski", but just that. No explaination as to what that decision says. I have searched the BVA and USCOVA sites and entered Bell v. Derwinski in the search description.

Where can I retreive a copy that 1992 decision? I will need it as an attachment since I am listing it in the letter.