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Help With Denied Cue


DIDURAE

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Hello All

I am new to this forum and I'm hoping to get advice on resubmitting my claim for CUE and asking for HLR.

I received a denial of CUE from the RO last month and I'm not sure how to proceed.  I found this page AFTER denial.  As of now, I plan to resubmit. Here is what happened.

Rating decision from May 2006 states "Service connection for headaches is denied because this medical evidence of record fails to show that this disability has been clinically diagnosed." Your service medical records how you reported for headaches in September 1988 after being involved in a traffic accident, again in March 2001 and February 2003.  VA examination noted headaches, mildly symptomatic. You take over-the-counter medication. You indicated that you have had headaches for the last 5 years. Currently, you get occasional headaches that go away by taking Excedrin. Examiner noted that you are not in any acute distress.  There is no evidence of a current disability.  Service connection for headaches is not established." I filed my claim 2 months after I got out of service. My questions are below:

**I'm not sure what they mean by "not clinically diagnosed." I complained and was treated at least 10 other times for headaches (which examiner made it seem like I only went 3 times).  Shouldn't examiner look at ALL the evidence?

**VA examination noted headaches. Wasn't that enough to service connect?

**Couldn't VA have service connected based on me being able to articulate my symptoms?

**Would it make a difference that I originally claimed headaches in 2006, but was awarded for Migraines in 2021? Different types of headaches

**I'm SC for sleep apnea and hypertension. Isn't there something about looking at all avenues of service connection? 

Fast forward to 2021, I was service connected for migraines at 50% using the same records I used back in 2005. The doctor's DBQ opiniated those migraines started while I was on active duty and that I am entitled to service connection due to STR documenting treatment while in service.

The CUE denial says "The decision to grant compensation from June 2021 for migraines is not considered to have been clearly and unmistakably erroneous because the alleged error involved an exercise of judgment which cannot be characterized as undebatably erroneous. (38 CFR 3.105, 38 CFR 3.400). We assigned a 50 percent evaluation for your headaches based on: Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

**I argued for an earlier effective for the May 2006 decision based on CUE, NOT the June 2021 decision. What error involved judgement........2006 decision or 2021 decision?

**How do I find regulations in effect in 2006?

This is so confusing to me. Any advice would be greatly appreciated.

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6 hours ago, DIDURAE said:

Fast forward to 2021, I was service connected for migraines at 50% using the same records I used back in 2005.

Depending on when you were rated in 2021, it would be a lot easier to file a disagreement instead of filing a Cue claim. Cue claims are harder to win but not impossible. Filing a disagreement would/could get you the same benefits going back to 2005 but it still depends on your evidence of records and your medical opinions. If you are within 1 (one) year of your HLR decision just file a disagreement to the BVA. I know that no one likes to file an appeal to the BVA but that may be your best chance at getting your correct effective date. Now the BVA may award you a Fenderson (STAGED) rating but once again it depends on all the evidence of record. Typically, when a veteran reopens a claim, the RO including the HLR ignores their own regulation and they do not consider 38 CFR 3.156 (A), or any other regulation and the veteran has to file an appeal to the BVA.

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File a NOD on the June 2021 decision "well before" June 2022.  

Disupte the effective date, and, denial of the CUE.  

For better answers on how to word your NOD, post the reasons and bases from your decision, absent your name address city, state, etc.  

VA is contradicting themselves "unless" you were diagnosed "after" the 2006 decision, but before your 2021 decision.  

To know that, read your decision again, (both of them) and pay attention to the evidence section.  

Your effective date is the later of the date of claim or facts found.  

The "facts found' IS the date your doctor said your headache symptoms (which meet the criteria for 50 percent) began.  If your symptoms worsened, you may need to go for a Fenderson (staged rating).  

     A Fenderson rating, for example, may award SC for headaches at 20 percent back to 2006, then 50 percent when your symptoms worsened in 2021.  

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Not all VARO, BVA errors, even serious ones are  considered CUE.  Here is the VA definition of CUE and this definition is one of the statements used in CUE claim/appeal denials for many decades by the Courts, BVA and VARO. Like others have stated CUE is very difficult to win for the vet and even with experienced VSO or attorney assisting the vet.

38 CFR 3.105 Revision of Decision (CUE)

"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".

Beginning in 2000 I filed a CUE claim that contained four CUE contentions within that one claim that VARO had committed CUE on my initial PTSD rating, Reduction of the low rating from 50 to 30%, termination of the PTSD rating in 1991 and failure for VARO to adjudicate and award me a TDIU rating based upon all the medical and non medical evidence in VA and Army records.

I had to appeal this CUE claim as pro se appellant all the way up to the U.S. CAVC court and in 2003 the court agreed only with my last contention that the VARO committed Due Process Error (NOT CUE) in not adjudicating me for TDIU rating.  The court ordered this to be done on their remand to BVA and VARO instructions so I won my court case but they would not admit to CUE.  A win is a win by any means.

You should IMHO used standard type appeal process before filing a CUE claim.

In my other appeals since then I have used the statement that VARO and/or BVA committed serious error in my denial but I never say CUE unless I think I have the hard facts, evidence to prove CUE and that has not been the case or necessary for CUE.  

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

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