CUE for back & neck

[VanillaXtract]

I believe I may be eligible for a CUE based on the decision maker overlooked material facts of record or the decision maker failed to follow a procedural directive that involved a substantive rule (a rule that regulates a right). I originally applied for benefits in 2008. However, fresh out of the Navy and into a new job, I did not have time off I could take. So I missed my appointment. I tried to call and reschedule but could not find the information to do that. The claim was denied and closed. In 2017 I tried again as my pain was getting worse and starting to affect me on a daily basis. They stated I missed my appointment in 2008, so they did not reschedule me and my claim was denied. Fast forward to 2021. I filed again, this time I hired Dr. Bash to help since I was not able to get anywhere on my own and my VSO was not returning my calls or helping me. I was finally awarded 100%.  Is it possible to use this as a basis for a CUE because I should have been able to attend C&P exams back in 2017 to show my injuries? In my record, it shows I complained of back and neck pain as well as a severe car accident (one of the nexus events).

EDIT: I do not see a way to attach files to the post.

[broncovet]

You posted:

Quote

So I missed my appointment. I tried to call and reschedule but could not find the information to do that. 

Its my opinion this is not a basis of CUE.     (You being unable to find the information to do that).   But, keep reading, below.    This happens somewhat Frequently where Veterans "dont know where/how to apply/where to mail it in, etc".  While I dont doubt your sincerity, unfortunately being unable to locate a VSO to help you,  or a phone number to reschedule is not CUE.  

Now, there may be CUE error..but it would take a review of your file to determine that. 

More likely, you may have a CUE on the effective date of the most recent award.  Or if that new award letter is less than a year old, just file an appeal disputing the effective date, stating that you had applied for the same benefit earlier, but were denied. 

My advice is to appeal the 2021 decision, disputing the effective date, if that is within a year. 

Cue is normally  a last resort.  You may have cue, but what you really want is an earlier effective date and more retro, rather than trying to prove VA wrong, corrcet?   

[VanillaXtract]

33 minutes ago, broncovet said:

You posted:

My advice is to appeal the 2021 decision, disputing the effective date, if that is within a year. 

Cue is normally  a last resort.  You may have cue, but what you really want is an earlier effective date and more retro, rather than trying to prove VA wrong, corrcet?   

Correct. My main issue was that they did not allow me to apply in 2017. They opened the file, saw I missed an appointment, and then closed it without allowing me any action. 
 

My new award is less than a year old, so I will dispute the effective date. 

[pacmanx1]

3 hours ago, VanillaXtract said:

My new award is less than a year old, so I will dispute the effective date. 

A lot of veterans hear about filing a CUE claim and think that that is the only way to get a EED (earlier Effective Date) but a simple timely filing a disagreement could also warrant an EED. Cue claims which are not impossible, but they are harder to win, and they have a higher threshold for veterans to meet and the veteran gives up his/her benefits of doubt. Whereas filing a timely NOD/Disagreement could get the exact same benefits. Keep in mind that you have 1 (one full year/ 365 days) to file a disagreement to preserve your earlier effective date and the veteran keeps his/her benefits of doubt. 

Edited August 24, 2022 by pacmanx1

[broncovet]

Here is the deal:

   Cue is an onerous standard difficult to meet the requirements.  

   However, a "regular appeal" (timely filed) means the Veteran keeps the "benefit of the doubt".  

   So, unless you want "practice" filing CUE, then take the short cut, the easy route of filing an appeal, instead of deliberately making it harder on yourself.  

   I always suggest filing an appeal when you are within the appeal period (1 year for VARO decisions)

    File it on the applicable form, dispute the effective date, and go for it.  I advise to file direct to BVA (board of Veterans appeals) and not to waste time with a "higher level review" at the Regional office. 

    If you have evidence to support your position, such as a denial letter for the same condition, by all means submit it.  

    It sounds like you were actually in service, this probably means you applied within a year of exit from service, and are entitled to a presumption.  

   So, you got an exam before you got in service.  Then, within a year of getting out, you have some sort of malady.  The presumption here is you got it in service AND your effective date should be the date of exit from service.  Here is the regulation:

 

Quote

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

Source:  https://www.law.cornell.edu/uscode/text/38/5110

    Its not unusual to get the wrong effective date.  

[Dustoff1970]

As in my case with a CUE claim and appeal I filed on my own in 2001 with the CAVC court that was denied as CUE by the court but the same court and Judge Harold Green said the VARO committed a due process error in failing to adjudicate me for TDIU and his remand instructions ordered the VARO to process my claim/appeal for TDIU effective as of 95. 

So you can still win sometimes by filing a CUE claim that is usually quickly denied by VARO and BVA.  The VA does not ever like to admit to committing very serious errors in adjudicating veterans' claims.

[Vync]

I agree that it might be better and potentially easier to request an earlier effective date as long as you are within the one year window of the decision. Please note that I have never taken this approach.

CUE is both an anomaly and headache when dealing with the VA. A CUE can be filed at any time, even while a claim is pending. You cannot use benefit of the doubt. It cannot be a judgement error. You must have solid proof and use laws and regulations in effect at the time the error was made. Additionally, to must be able to show the VA how you would have benefited had the error not occurred. The evidence must be clear, cut and dry so that "reasonable minds" come to the same conclusion. It is not a fun process and can require a lot of time, learning, and research. Although some prior members here said you can ask the VA to CUE themselves, I have never taken this approach. Instead, I decided to prove to the VA exactly how they committed CUE.

I filed several CUEs and won all but one which is on appeal with the BVA after the HLR review resulted in a repeat of the same error (failing to apply DeLuca functional loss). As an example of a CUE win, I had initially filed for aggravation immediately after leaving the service and won after a five-year long appeal. My VSO told me to be happy and not rock the boat. I had no clue about VA laws/regs and blindly trusted my VSO. Fast forward 20 years after having learned more about CUE. I dug through the Federal Register to locate pertinent laws/regs in effect back in 2000 when the decision was made. The VA failed to follow the laws/regs governing how the VA should calculate the rating %'s involving aggravation. Well over a year later, the VA admitted CUE occurred and corrected the initial rating.