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Filing a CUE concurrent to a new claim of the same?


Rivet62

Question

Is it possible, or advisable, to file a CUE for a decision that excluded TDIU consideration, while concurrently having a new claim filed for TDIU?

I should have filed a CUE, given the success of a case posted here by the member named Dustoff 11, (posted Tuesday at 10:26 AM):

 

 

Some back story here:

I filed my original claims in 2016, for which I was granted 80% combined. My attorney included "failed to consider TDIU" on our NOD following that decision of 80%.

Yet again, the response to my NOD from the VA made no mention of TDIU.

 

Fast forward to January 2022, I filed the TDIU request form, VA Form 21-8940, the official VA form to apply for Total Disability Based on Individual Unemployability (TDIU).

However, it appears I may have a CUE concerning TDIU based on what was said by Dustoff 11 on the thread linked above. Based also on the fact that VA has ignored my issue of TDIU twice. First, in its failure to respond to an inferred claim of TDIU in my original claim and second in its failure to acknowledge TDIU stated on the NOD.

 

My question is, is it possible (or even advisable) to file a CUE for failure to consider TDIU in the original claim and again on the NOD?  All VA health records repeatedly show employability issues that VA could not have missed, given the evidence they cited in their response to my NOD. Can I file a CUE on this matter of TDIU even while I have a pending TDIU claim filed as of January 2022?

What should I do?

How long do CUEs take? Should I withdraw my TDIU claim filed in January 2022? The difference is BACK PAY, one with an effective date much earlier.

What should I do? What can I do?

 

 

Edited by Rivet62
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There is a lot here, what a lot of veterans do not understand is that filing a CUE claim and filing a NOD can get the veteran the exact same benefits. Cue claims can be filed at any given time and there is no time limit. With that said, Cue claims are harder to win but not impossible. Simply filing a NOD is a lot easier and simpler and the veteran keeps his/her benefits of doubt whereas when filing a CUE claim the veteran loses his/her benefit of doubt.

Both claims could/would get you the earlier effective date and back pay of TDIU if awarded. Why would you want to withdraw a valid NOD and try to file a Cue claim? Try not to follow the rabbit down in his hole. If you are not familiar with Cue regulations and laws, you are definitely going to need some help. Cue claims are somewhat like any other appeal but as stated, they are harder because your argument must be specific, and it must show/state how the VA created the Cue.

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23 minutes ago, pacmanx1 said:

when filing a CUE claim the veteran loses his/her benefit of doubt.

That says enough right there. If a claim is won by the "as likely as not" then a CUE can wreck that. I'll stick with what I'm doing, which is submitting the TDIU claim for in January 2022 and then argue later for an earlier effective date with the BVA. Thank you so much for pointing that out.

But for clarity, I don't have an active NOD now. I did have an NOD and VA's response was a shuffling of service-connected issues such that I remained at 80% anyway. I didn't appeal it. Instead, I filed the official TDIU claim form which is now pending. I hope to appeal an earlier effective date if they grant TDIU.

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Pacmaxman is correct in his statement that first option should be a standard appeal via NOD for a TDIU initial denial by VARO .  Back in around 1999 both VARO and BVA denied my PTSD increase and PTSD TDIU claim application so I then filed CUE that was again denied by VARO and BVA but I then appealed the BVA CUE denial to the U.S. CAVC court as pro se appellant and the court in 2003 agreed that the BVA and VARO made a due process error in failing to adjudicate me for both a requested and implied TDIU claim and remanded my claim/appeal back to VARO for their adjudication of my TDIU.

In the same court appeal the single judge denied my other 3 PTSD CUE contentions but I still won my CAVC court appeal.  Everything from start to finish took about 3 years and as result I received P&T TDIU with 5 years back pay.

I will send you via private msg copy of the court reason for ruling in my favor on the TDIU claim.  Read carefully the other federal court and CAVC court prior decisions they cite in my case. Standby One.

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

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I agree with Pacman.   Failure to adjuticate is not Cue, because its not outcome determinative.  Outcome determinative is one of the criteria for cue.  Just because they did not adjuticate it, does not necessarily mean you would have been awarded tdiu if they adjuticated it.  

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