Filing a CUE based on denying lay evidence

[Bunny448]

Good day,

I am building a case to file for Menieres Disease and I need a vertigo claim approved.

In 2006 I filed for vertigo that began in non combat at Fort Leonard Wood in 2002, I have many documents stating the diagnosis was vertigo.

It got worse in 2003 after two TBI events in Iraq.  After Iraq I sought treatment and was diagnosed with PTSD with panic attacks.

During the 2006 C&P the doctor claims I stated that it feels like the vertigo attacks come while I'm having a panic attack.  I doubt I said this, but whatever.  Also the vertigo started a year before I went to Iraq, so they should not be conflated.

So the VA denied my claim for vertigo saying I stated the vertigo attacks come with the panic attacks, and so should be considered under the mental health rating for PTSD.

I'd like to file a CUE, that the VA took a lay diagnosis (mine, that they were panic attacks) over multiple doctor diagnoses of vertigo.   Can I file a CUE for this?

I'll also stress in my planned  CUE filing that the vertigo began (and was diagnosed by mail doctors) a year before any combat.

Thank you for any input!

 

 

[Dustoff1970]

Here is the official VA definition of a true CUE (Clear and Unmistakable Error) claim    https://www.ecfr.gov/current/title-38/chapter-I/part-20/subpart-O/section-20.1403

For example if you file a CUE claim from a VA or BVA decision denial that was rendered 20 years ago and if successful you can receive backpay for those 20 years unlike filing a new or reopened claim from that 20 year old decision as the VA will only start your new rating and pay from date of filing the reopened claim for same issue denied 20 years ago.

You can see why true CUE claims are not easy to win as some represents big MONEY to the VA.

It is very common for many folks to confuse any type of  error/s by VA or BVA as CUE error and they often use this term in their media statements or even in their NODs and appeals and lose unless they meet high bar requirements of 38 CFR 20.1403.  The VA and BVA consider CUE claims as an assault on their adjudication judgement decisions so I have heard and read for many years from veteran lawyers or their law firms.

They were very quick to deny my CUE claim until I appealed to the CAVC court that agreed the VARO should have considered me and adjudicated me for a TDIU claim that was a due process error and not CUE but I won anyway as VARO did give me TDIU according to court remand instructions with about 5 years backpay.

I have never used the term "CUE error" in my other successful   appeals but instead only the term "error" in my appeals.

Now we can debate how many angels can dance on a pin head.

This comment is not legal advice as I am not a lawyer, paralegal or VSO.

[Berta]

You are both right-

Re opens usually get the Re open date for retro - if successful. That paves the way for a successful CUE -------depending on the denial rationale and the rating sheet.

I reopened my claim in 2003 but the EED went back to 1994....

I would have to pull it put to find out why- not a CUE and not a 3.156.

It was a change from 1151 DIC wrongful death  to Peace with Honor- Direct SC death- maybe that is why.

I had 2 IMOs from Dr Bash, a freebee from a former VA Neuro in email and I knocked  down the remand doctor and sent that to the BVA.- He didnt have a clue, so BVA gave his opinion no

weight- maybe it was a CUE claim, from me  I have filed so many I forget- 

 you are right on 38 CFR 3.156-I never needed that as a widow.

 

Edited March 12, 2022 by Berta
snow in satelitte dish

[Dustoff1970]

Sorry pacmax your extensive comment on new and material evidence will not get you 20 years of back pay on previously denied and closed out VARO or BVA decision.

When you file new and material evidence for a previous denied and closed out VARO or BVA decision then this is considered and adjudicated as a new reopened claim and the date of award if successful will be date you filed the new and material evidence reopened claim.

You can file an "effective date" claim at any time claiming the VARO errored in assigning an incorrect effective date to a 20 year old closed out claim.  Good luck with that.

It is up to each individual to interpret the Title 38 CFR 20.1403  CUE regulation and other mentioned regulations any way they want to.  That is fine by me.

This comment is not legal advice as I am not an attorney, paralegal or VSO.

 

[broncovet]

You posted:

Quote

When you file new and material evidence for a previous denied and closed out VARO or BVA decision then this is considered and adjudicated as a new reopened claim and the date of award if successful will be date you filed the new and material evidence reopened claim.

Not exactly.  There are 2 parts of 38 CFR 3.156: 3.156 B and 3.156 C. 

    3.156 B.  (pending claim).  "If" you submitted new and relevant evidence "in a pending claim", then it goes back to the beginning of the appeal period.  This means if you submitted new evidence "within a year" of your decision, then that reopens the claim, and VA has to re adjuticate it, and, if awarded, will be the later of facts found or the beginning of the appeal period.   A claim is pending until adjuticated.  If denied, you may appeal for one year (VARO), so submitting new evidence in this one year period can net you an effective date from the beginning of the appeal period.  

3.156 C. (new service records).  If VA lost some/all of your service records, and those can be recovered, you should get an effective date the later of the facts found, or the date you originally applied.  

[Dustoff1970]

Your Key word is "pending"  and I have been referring to closed out claims (no longer pending)  whose time line for appealing the decision has expired in reference to my discussion on CUE error claims and not pending or EED effective date claims.  You are mixing apples to oranges here but that is okay with me.   

Edited March 12, 2022 by Dustoff 11

[Berta]

Thanks Broncovet

The claim I mentioned I iled in 2003 received a 1994 EED because it was a Nehmer Footnote One Claim.

The claim I filed when the AO IHD regs came out ( 2010 ???)

Also I got a 1994 EED because it was a Nehmer Footnot One claim.

My pending claim is also a AO claim for HBP based on the same evidence vets have been succeeding with for AO HBP. This applies to all incountrys and also to Blue Water Navy veterans.

Not Nehmer yet-but  I expect it will become a valid new presumptive

 

These BVA decisions might help some here to understand the regs better- There are conditions for re opens.

https://www.va.gov/vetapp21/Files12/A21019496.txt

https://www.va.gov/vetapp21/Files10/A21016546.txt

https://www.va.gov/vetapp21/Files3/A21006708.txt   I believe this widow is a member here.

The BVA is correct in the denial.

Here is a 3.156   winner winner  Chicken Dinner:

"Citation Nr: 21029600 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 19-37 873 DATE: May 14, 2021 ORDER An effective date for the grant of service connection for posttraumatic stress disorder (PTSD) is granted effective May 30, 1997. FINDING OF FACT Evidence of the Veteran's PTSD disability existed prior to the issuance of the denial of the claim in July 1998, was relevant to the claim, and had not been associated with the claims file at the time of the prior decision in July 1998. CONCLUSION OF LAW The criteria for entitlement to an effective date of May 30, 1997, for the grant of service connection for a PTSD are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c), 3.400.

https://www.va.gov/vetapp21/Files5/21029600.txt

24 Years of retro- probably a Fenderson rating- in any event however a REAL NICE Chunk o CHANGE.