Two Separate CUE Claims

[pacmanx1]

Found this doing my homework and in my searching.

 

The Veteran has perfected an appeal on the discrete of issue of whether there was CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that VA had failed to apply 38 C.F.R. § 4.16(b) to determine whether an extra-schedular TDIU was warranted.  Specifically, the Veteran alleges that VA committed error in the August 2004 rating decision by failing to refer for consideration by the Director of Compensation and Pension a claim for an extra-schedular TDIU.  He argues, in essence, that the August 2004 rating decision is the product of CUE because VA failed to consider and grant entitlement to an extra-schedular TDIU under 38 C.F.R. § 4.16(b), prior to January 24, 2001.

 Alternatively, the Veteran has also raised the discrete issue of whether there was CUE in the August 2004 rating decision that established an effective date of January 24, 2001, for the award of a TDIU, based on the distinct CUE challenge that an earlier 1998 TDIU claim remains open and pending and thus was not an abandoned claim.  Specifically, the Veteran alleges that VA committed error in the August 2004 rating decision by erroneously determining that the Veteran failed to prosecute, and thus had abandoned, a TDIU claim filed in 1998.  He argues, in essence, that he filed a claim for TDIU in January 1998, the status of which remained open and pending, and thus was not an abandoned claim, because the AOJ failed to mail a February 1998 VA form to his latest of address of record (i.e., specifically arguing an "incorrect zip code" in the mailing address).  As noted in the Introduction, above, this distinct "pending-claim" challenge of the August 2004 rating decision was ruled by the Court to be a "new" theory of CUE, as discussed in the April 2011 Memorandum Decision and the February 2014 Appellee's Motion to Remand but has not been formally addressed by the AOJ.

https://www.va.gov/vetapp15/Files4/1533318.txt

 

 

[Dustoff1970]

Around 2003 the U.S. CAVC Court decision on my pro se (self represented) claims for CUE for among other items was a failure of VARO to adjudicated me for both a requested and implied TDIU claim was in fact a due process error and not a CUE error.  On remand instructions the court ordered the BVA and VARO to adjudicate me for a TDIU and P&T claim so I actually won my court case.

Just before then due to other reasons and claims such as VA injury Section 1151 and a claim/petition for Equitable Relief the VARO had issued me a grant of P&T TDIU with about 5 years back pay so since I received what I requested the court decision became moot (legal term).

A so called but biased expert at another location became mad, jealous as that I won this CUE court case as a pro se vet thru a court remand instructions to BVA and VARO.

On the other issues if the VA or BVA never issued vet a remand or final decision on vets claim/s then IMHO the claim is not abandoned at all and still open. May need a lawyer  or motivated experienced VSO for this one to prove they never issued  the decision or remand.

On the issue of  mailing address the Fed courts and CAVC has frequently sided with the VA that the "presumption of Administrative  regularity doctrine/law" was in favor of the VA as the courts say it is considered and assumed the Agencies (VA) perform their duties in a correct and legal manner unless the veteran claimant can prove otherwise.

Vet would have to prove they mailed to the wrong address or that they did not receive vets change of address form/notice that was correctly sent to the correct VA address.

If I am wrong others will be quick to correct my comment that is A Okay but my court case speaks for itself.

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

 

Edited April 3, 2022 by Dustoff 11

[pacmanx1]

The OP (Original Post) is to prove that a veteran can have more than one CUE claim for a particular disability not that they would be granted or not but there is no such thing as a onetime Cue claim/request. 

[Dustoff1970]

In my CUE Claim and appeal filed around 1999 or 2000 that was remanded with a favorable result to me by the CAVC Court in 2003 I made several CUE contentions within one CUE Claim/Appeal.  They were as follows:

1. The VA committed CUE in awarding me a 50% PTSD rating instead of 70% or higher. 1985

2. The VA committed CUE in lowering my PTSD 50% rating to 30%.  1987

3. The VA committed CUE by terminating my PTSD rating in 1990 or 91.

4. The VA committed CUE by failing to adjudicate and award me TDIU or IU as an implied claim for IU based upon all the medical evidence in my VA and Army medical records.

The great Court agreed only with my #4 CUE contention and remanded my claim back to VARO for a P&T TDIU adjudication which they did. They said this was a due process error on part of VARO and also stated the BVA failed to read my CUE and TDIU claim in a sympathetic  manner as a pro se self represented veteran claimant according to Roberson v Principe.

38 CFR 3.105 Revision of Decision (CUE) definition.

"Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied."

Edited April 5, 2022 by Dustoff 11

[Rivet62]

On 4/5/2022 at 10:26 AM, Dustoff 11 said:

4. The VA committed CUE by failing to adjudicate and award me TDIU or IU as an implied claim for IU based upon all the medical evidence in my VA and Army medical records.

The great Court agreed only with my #4 CUE contention and remanded my claim back to VARO for a P&T TDIU adjudication which they did. They said this was a due process error on part of VARO and also stated the BVA failed to read my CUE and TDIU claim in a sympathetic  manner as a pro se self represented veteran claimant according to Roberson v Principe.

38 CFR 3.105 Revision of Decision (CUE) definition.

"Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied."

I really should have considered filing a CUE, because I had the same circumstance. Instead of filing a CUE I filed the original TDIU claim form, wiping out my effective date for large back pay. Everyone I talked to said "no you need to file the form."  No one said CUE.  So now I guess my only recourse is to argue for an earlier effective date IF I am approved for TDIU based on the form I filed in January. Just wow. 

I wonder if I can file a CUE while still having the TDIU pending as of the January 2022 form submission? 

This is actually a really good question that deserves a new thread, but your post here puts that question into context.

I will post that as a new question on a new thread.

Edited April 7, 2022 by Rivet62