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

[Vike17]

While Rocky's claim is probably a CUE as far as the effective date and evaluation assigned, the only thing he has to do is file a normal NOD. He certainly can claim that a CUE was made in the decision, it isn't necesarry because he is appealingthe decision with the one year appeals period. If a CUE is alleged by the claimant within the one year appeals period and is subsequently fixed by a DRO, in essence the CUE is a moot point because the DRO coudl have changed the decision regarless if it was a CUE or not.

A CUE is the means by which VA can go back and correct a prior decision that has become final. While one can contend a CUE has been made on a decision that hasn't become final, it isn't really needed. As i said before the DRO can go back and change the decision regardless because the claim is within the one year appeals period.

The only thing Rocky needs to do is state he disagrees with the effective date and evaluation of 30% and state why he disagrees with it. He cannot file a CUE on the 1976-77 'claim,' that 'claim' has technically been open the whole and there hasn't been a decision made.

Vike 17

[carlie]

Rocky,

I edited the date of my last post, my bad - and put you more info.

carlie

[RockyA1911]

That is exactly what I did Vike,

I filed a NOD against the 21 February, 2007 decision. Two issues I nodded were the 30% rating and why it should be 50% and ED of 11 July, 2005 and why it should have an earlier effective date of 28 Nov 1976. The rating decision did grant the service connection of skull loss. I had all the same evidence presented in the claim dated 11 July, 2005 requesting EED of 28 Nov, 1976 as is in the CUE and NODs just submitted as justification for 50% skull loss and EED and still was awarded 30% and ED of 11 July, 2005,,,,,AND THAT WAS THE TIGER TEAM.

Vike, What makes you think if I take the DRO route, the same thing won't happen that happened in the 21 February, 2007 decision? I'm just curious because I have beat the VA over the head with this same argument with the same evidence. Why would a DRO not read it and provide the same decision?

The CUE is filed against the rating decision dated 25 April, 1977 because the adjudicator made "clear and unmistakable error" CUE in not granting direct service connection of skull loss. Had this decsion not been flawed, I would have received "service connection for skull loss" with an evaluation of 50% per 38CFR4.71a DC 5296 (3.133 sq in (20.25 sq cm.) in addition to the direct service connection for PCS residuals and award of 10% (DC 8045 -9304) with effective date of 28 November, 1976. This is total combined rating of 60% and a 60% rating is undebatable and warranted due to the flawed 25 April, 1977 rating decision.

I sent another page called an ammendment to the CUE I sent yesterday with something like the above paragraph to call to their attention that it is a 60% combined rating I seek, not 50%.

There is a big difference in retro between 60% monthly payments minus actual monthy payments received at 10% comp for the last 30 years and just 50% retro for 30 years. They could have just granted the 50% for skull loss and service connected it. Whew! I'm glad I caught that. Will they allow this short paragraph to be added to the initial CUE I mailed yesterday?

So I figure with a NOD on the Feb, 2007 decision, and the CUE for the 25 April decision one of these or both might come through for me with 60% combined retro over 30+ years........keeping fingers crossed!

So do I have all the bases covered now? And will this take a lifetime again to get a decision? I have already wasted the past two years with the EED for skull loss and service connection and have gotten nowhere.

Edited March 13, 2007 by RockyA1911

[RockyA1911]

The calculated retro due me is $181,740.00!!!!!!!!!!!!

I can't imagine even seeing a dime of it from the VA.