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

[RockyA1911]

Carlie,

IF the adjudicator at the time of the 25 April, 1977 rating decision had not mentioned in the narrative "Neurological examination was to a large extent normal, although the outlines of the skull defect were palpated in the left parietal area". It would have been as you say.

However with that statement in the rating decision, it is evident the adjudicator made a final decision even though there was no service connection awared for skull loss at that time.

The skull loss cannot be an open claim now, because I already have S/C of skull loss as of 21 Feb, 2007.

Why would I claim S/C for skull loss again? When two claims are pending for the same disability such as skull loss and one of them is granted, the previous 1977 open claim is final since the 21 Feb 2007 provided an effective date of 11 July, 2005 that is not final until 1 year from award date.

The issue of service connection for skull loss is not the issue here, I have that.

The CUE is because they should have S/Ced skull loss and provided a rating of some kind in 1977 because the same exact medical evidence (Military Medical Records) use to grant the Feb 2007 skull loss was in front of the rater in 1977. If I was still not service connected for skull loss to date, then I believe the 1977 claim is entirely an open claim for service connection of skull loss.

That's the way I see it anyway. I was going to put open claim and not use unappealed final claim, but I did and then used a sentence to explain why I could not file an appeal at the time, because of the technicality that the rating officer did not provided any decision for S/C grant of skull loss.

If I had put open claim, then they would have technically said it was a final claim. So if you read the thing again, you will see I covered it both ways in the brief, and also referenced 38CFR3.400 as definition of an unadjudicated claim is determined as an open claim. I am trying to cover both sides of the coin.

Service Connection of skull loss, right or wrong rating, has since been adjudicated and provided for in the 21 Feb 2007 rating decision.

So "Has the S/C for skull loss been adjudicated?" Yes

And "Was the S/C for skull loss adjudicated in the 1977 rating decision?" Yes

And "Was a grant or denial for S/C of skull loss provided for in the 1977 rating decision?" No

[carlie]

My bad - I had to edit this as I had inserted an incorrect date - it has now been corrected - carlie

Rocky,

Read it anyway you want, but since you choose to file a claim for CUE , on the Rating Decision

that is dated 25 Arril 1977 - I will wager VA figures out, that you, the claimant are not filing your claim for Cue, on a final decision. I feel the lack of adjudication on VA's part to adjudicate this claim

by either a grant or denial of SC , left you no opportunity to appeal, thus leaving the issue of Skull Loss in a pending status as an unadjudicated claim.

38 CFR 3.160 - Status of Claim

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

Good luck, and I do agree with the evidence that fully supports a rating

for skull loss at a 50 % level, with an ED of day after separation. We just disagree about the

procedures of getting that granted.

carlie

Edited March 13, 2007 by carlie

[RockyA1911]

Carlie,

Again I did not file a CUE against the decision dated 21 Feb, 2007. I filed a CUE against the rating decision dated 25 April, 1977, because the same evidence that granted service connection and an award for skull loss in the 21 Feb, 2007 decision was the exact same evidence that was before the adjudicator at the time of the 25 April, 1977 rating decision that AWARDED S/C for PCS residuals etc under DC 8045-9304 and rated it at 10%.

Don't be cornfused! A RATING DECISION and CLAIM FOR DISABILITY COMPENSATION are two different things. The rating decision of 25 April, 1977 is final, there was an award. The claim for disability compensation dated 15 Nov 1976 is STILL OPEN.

Rating Decision letter and the claim for disability compensation are two entirely different animals. I don't think claims for disabilitity are considered final, just the rating decisions. I never contended or ever stated that the 21 Feb, 2007 rating decision was final at all, after all I just got it at the end of last month.

Please read the draft CUE attachment again. In the very first sentence it says "Failure of RO to apply 38CFR4.71a, DC 5296 for granting service connection for skull loss, 4.5cm x 4.5cm (3.133 sq. in.(20.25 sq. cm.) in rating decision dated 25 April, 1977."

I have not filed a CUE against the 21 Feb, 2007 decision rating. I did file a NOD rebutting the 30% rating evaluation and cited DC 5296 along with their math error and proved to them the rating should be 50%.

The 21 Feb 2007 rating decision granting service connecting the skull loss, not the rating, is the proof that I should have been granted it in the flawed 25 April, 1977 rating decision.

By the way I have a question as far as calculating retro. In the event the VA does grant EED and skull loss of 50%, will they add the 50% to the 10% awarded for PCS in the 25 April, 1977 rating decision for a combined total of 60%?

And then will they deduct all the 30+ years for payments received monthly at the 10% dollar amount?

I feel that is the way they should work it. I should get 30+ years of retro of combined total of 60%, minus payments received.

If so, this would be a heck of alot of cash. I can't even imagine how much it would be........Berta!!!!!! Where are you???????

Edited March 13, 2007 by RockyA1911

[Berta]

Rocky- I don't have a clue what kind of money this could involve-

I dont have the historic rates past what is at the VA web site-

CUES get money-

Mine 2-3 years ago got $40,000

On my present SMC CUE- I told the VA it appeared they owed me about $68,000 accrued -I broke the SMC award down right in the additional response to their first letter on this CUE.

It does not include however Rod's CAD and DMII-yet to be rated - but it's a start.

Terry- Rocky cannot appeal directly to the BVA-

He has not been denied yet at the RO level and will have ample chance after any possible denial to send then full rebuttal and alleap any CUE denial.

My 2 CUEs in late 1990s , denied at RO, then were denied at the BVA, in the past-

I was given full appellate rights.

As I stated before-

Regional Counsel awarded one of the BVA denied CUES- and the award came from the RO.

Another Cue I had denied at RO, then at the BVA-the VARO itself filed Motion to Reconsider on at the BVA in August,2006.

These two situations bypass normal claims under CUE- because the VA itself took these actions.

Claimants under CUE, unless in these circumstances,

have to file CUE where it occurred -

appeal where they filed it, if denied, and then procedure through normal claims procedure.

I filed against RO, denied at BVA on 2 above CUEs, and could have certainly gone to the CAVC-

A CUE can only be filed against whoever caused it-

VARO commits legal error- VARO gets the CUE claim=

BVA commits legal error- BVA gets the CUE claim.

The collateral attack of alledged CUE is an attack against the actual jurisdiction that committed the CUE.

[RockyA1911]

Hey Terry,

I mailed the CUE to the VARO since the error was made by the VARO. The VBM that Berta referred to was explicit. If the error occurred at the RO, the CUE is against the RO. If the error occurred by the BVA, then the CUE would be against the BVA.

If the VARO rules against the CUE, then I will appeal to the BVA having shown that the CUE was submitted to or through the RO first since they committed the error.

Either way it will all come out in the wash I do believe. Lies don't last, the truth will remain forever and ultimately overcome an objections. If there are some technical such as whether or not the 1977 decision is or is not considered a final claim and denied. If that is the only objections, then I will submit it again stating it is an open claim and reference the decision that ruled on it being an open claim. So, if it goes back again it wouldn't be for the issue of what the 1977 decision is supposed to be called.

Either way my CUE is clear and it is undebatable that I was screwed back in 1977, be that whether they call the decision a final or an open decision.

It is a road I am on and I won't see the turns or obstacles until I arrive. The CUE was submitted yesterday. I have an appointment next week with Senator Barack Obama. I am sure he will easily see what rubbish this is. I am sure he will be appalled at this and hopefully do something quickly. Obama is not one to leave an issue in suspense, he wants everything accomplished the same week he asked the question or raised the issue.

When he sees that I have been playing the game for two years now over this error and essentially the same information a "claim of CUE" was also on the claim I submitted dated 11 July, 2007. He will see the rating decision this Jan 2007 stating "Skull loss and earlier effective date" deferred. Then he will see this CUE with the 21 Feb 2007 rating decision, the clear error of the rating percentage and the effective date of 11 July, 2007 with no more mention of earlier effective date. He contacted the VA Secretary last time in late Dec 2006 and the actual rating decision was given to me in Jan 2007, but was done on the 28th of Dec, 2006. From the time I gave my claim information to Obama until the Tiger Team rating decision was about a week and that included the Christmas Holidays.

What about the retor pay? Am I correct in if they grant the CUE and also award 50% skull loss, will they add it to the previous 10% compensation for a combined rating of 60%? And then they will deduct the previous payments received when I was 10%?

Edited March 13, 2007 by RockyA1911

[Berta]

Rocky-I see the potential retro that way too----

but have no idea what those historic rates are---

and the allowance for or not for dependents etc-

I see CUEs as a legal challenge -I told them what I figured the award should be on my SMC CUE but I dont spend a single minute thinking about the amount-

That would affect perhaps the way I deal with them-I dont depend on ANYTHING from VA without a long fight-due to my personal experiences with them.

I did tell them the "S" award is a no brainer but completely unacceptable to me-

to stave off any "S" award crapola-