RE;What VA Form should I use to file a QUE Claim

[Rattler]

Ok so I am fixing to file a QUE claim today for an Earlier Effective Date because when the VA decided my PTSD / MST claim only went back to my filing of . What I need to know is what form do I need to use. I am with in the time period of a year to request a Higher Level Review VA-20-0996.  Or Request for a Supplemental Claim VBA-20-0995. Or use a VBA-21-10210-ARE-Lay-Witness Statement or VBA-21-4138-ARE-STATEMENT IN SUPPORT OF CLAIM. I have read the CUE Forum extensively and made notes. I plain on using Charly’s and Berta’s letter examples.

[Vync]

The answer to your question can be found buried deep in M21-1 and the most recent update was August 15, 2022, so this current:

M21-1, Part X, Subpart ii, Chapter 5, Section A - Revision Due to Clear and Unmistakable Error (CUE)
Article ID: 554400000177971

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177971/M21-1-Part-X-Subpart-ii-Chapter-5-Section-A-Revision-Due-to-Clear-and-Unmistakable-Error-CUE?query=M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions#2

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2. Handling Revision Requests Based on CUE

Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or the authorized representative.

 

 

My thoughts:

• You could file a supplemental/HLR review or BVA appeal. This is probably the easiest option. Additionally, you have benefit of the doubt on your side while your claim is still active.
• You could file a CUE. No special form required, but just be certain to cover every required point. Benefit of the doubt cannot be used with CUE.
• You could take the review/appeal route -and- also file a CUE separately. Keep in mind the VA might simply roll them together.
• If you choose to only file a CUE, then if it is not concluded prior to the one year review/appeal window, I would strongly recommend filing a supplemental/HLR review or BVA appeal so your claim will remain open.

Additionally, I filed a couple of CUE's in 2019 right after the AMA changes went into effect which involved initial claims from 1995 that were decided in 2000.  One was for a claim due to aggravation of rhinitis w/polyps where I had won the max rating % and they reduced it by 10% because the examiner said I always had it instead of deducting by the level of aggravation in terms of the rating schedule. The other was for TMJ where I won 10%, but they failed to apply functional loss/Deluca which would have resulted in a higher rating %. At the time, the VA was in the process of retraining their staff to focus on forms, but they wasted months of time trying to figure out if I needed to submit the CUE on any special form. Because they were obviously lost in their own procedural red tape, I went ahead and submitted both of them via a supplemental claim. I clearly described the error, quoted the specific applicable laws/regs which were in effect at the time the decision was made (including any rating criteria), and described the beneficial impact had the error not been made. Turns out I won the aggravation CUE at the supplemental level (which surprised me), but they denied the TMJ CUE. I then went the HLR route and was verbally told I had proven a very clear CUE, but when the decision letter arrived I found the QA team just ignored most of my points about functional loss/Deluca and instead issued a denial. I appealed to the BVA and am waiting for my hearing. I wanted to share that with you to show that CUE can be granted or denied via the supplemental or HLR review routes. I have been repeatedly told by VARO staff that the VA is in the process of putting together a form to be used for CUE claims. However, as you can tell, several years have passed and they still have not done that.

[pacmanx1]

1 hour ago, Rattler767 said:

I am with in the time period of a year to request a Higher Level Review VA-20-0996.  Or Request for a Supplemental Claim VBA-20-0995. Or use a VBA-21-10210-ARE-Lay-Witness Statement or VBA-21-4138-ARE-STATEMENT IN SUPPORT OF CLAIM.

Cue claims can be filed at any time and there is no time limit but as VYNC already stated it would be a lot easier simply by filing a disagreement and go from there.

[retiredat44]

I was told by my rep that after I was awarded 100% they would no longer help me file any more claims. They shorted me several years and pulled a date out of their butts. I have the paperwork, but am unsure if it was purposely overlooked and seeing the rules for CUE's there must be new evidence. The evidence was when I went into the VA hospital in 2008 (for 6 months), but they started with 2012, and I never got a reason why. My Que would be to change the effective date from this out of the butt date or 2012, to the date of 100% from 2008. I spent to many years fighting got my life and my family, and let it go because I needed a professional's help. I am too sick to fight these people at the VA. I am really interested in watching claims and CUE's like yours. I know they only thing they can say is no. But I was really afraid they would have screwed me totally over if I had not waited until at least ten years went by with a 100% rating, so they could not screw me out of that. That took from 1997 and thousands of nightmares and illness, and totally disabled nightmares, plus 20 years of appeals, and the BVA 10 year long nightmare. So, I really don't want to go through all that again, I was originally given about 2-3 years to live, because of my illness. So, I will keep hashing this over, hoping  an epiphany strikes on how to do this without the VA screwing me some more.

[broncovet]

Before you decide "which form to file a cue on" (which was answered well), decide "if" you should file a CUE.  

I think maybe not.  Instead, simply file an appeal, by filing a NOD.  I recommend the BVA, not one of the other regional office options.  

Why?   Its easier and a lower standard of review to file an appeal, vs filing a CUE.  

With a regular appeal, you keep "benefit of the doubt", while you give that up when filing CUE.  Why give it up if you dont have to?  That tool, in your tool box (BOD) can be very useful and mean the difference between Win and Loss.  

Even if you do decide to file a Cue, you likely still want to appeal.  Why?  Well, you may not meet the CUE "standard of review", but you may well reach the "benefit of the doubt" standard of review, so you wind up appealing anyway. 

The danger is missing the 1 year appeal deadline, which you dont want to do.  Then, your options are limited.  

More options usually means better results.  Example:  If you are in prison, and the only choice you have is to eat roaches or rats, you may not get as good a result if you have choices of hundreds of other foods.  

Based on the fact you are still in the appeal period, I would advise appealing the decision for an earlier effective date, and explain why you think so.  Do research first, on effective dates.  There can be many reasons for an EED.  My experience is that VA gets the effective date wrong most of the time.  So, I have appealed the effective dates of 3 different claims and won them all.  

 

The reason I recommend BVA vs HLR or SCL in most cases is because, going direct to BVA usually saves time.  Exception:  If you have new evidence, you can try SCL.  

My experience with "higher level" (DRO, SCL, HLR) has been the most likely result is a carbon copy denial of the original claim.  

The Regional Office has a "network".  (Gossip).  If "employee A" grants a claim you denied, well that makes him look bad.  These are people you work with, remember.  Do you really want to tick off a person at your workplace?   That may not be a great idea.  

    So, just go to the BVA which is seperate from the VARO (including DRO, HLR, SCL).  

BVA has lawyers, while the VARO has specialists with a much lower level of legal expertise.  

When your appeal goes before the board, it wont be rubber stamped "denied again", because the judges are supervised and an attorney (or attorney in training, sometimes) will review your file and propose a decision that the judge can accept or reject, at his discretion.  Mostly, those legal students work hard and are trying to make it to "attorney" so they know they will be carefully supervised.  

It reminds me of someone who is working hard to "make the team" in the NFL.   They try very hard.  Its amazing that those who work the hardest often succeed better than those who try something else..like loafing.  

Edited August 31, 2022 by broncovet

[pacmanx1]

I posted several days ago that Cue claims are hard to win but not impossible, but veterans should consider filing a timely disagreement an (NOD) or filing a reopen claim prior to filing a Cue claim. Filing a timely disagreement must be completed within a year's time from the notification letter for the decision. A veteran can file a Cue claim and or a reopen claim at any time and there is no time limit.

Be forewarned that the VA will try to limit the retroactive payment (effective date) to the date of the new filed claim unless the claim is based on a Cue or some other regulation like 38 CFR 3.156. Keep in mind that the evidence does not need to be new it can be material/pertinent or relevant.

After the VA awarded/granted one of my Cue claims, I filed a timely NOD requesting and EED based on VAMC medical records that were in my file but never considered or adjudicated and won an addition six (6) years of retroactive pay after winning my Cue claim.

Veterans can always seek free legal assistance and initial consultation from lawyers to review their records and help them understand how to proceed with their claims.

eCFR :: 38 CFR 3.156 -- New evidence.

 

Edited August 31, 2022 by pacmanx1

[broncovet]

Retiredat44 posted:

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seeing the rules for CUE's there must be new evidence

Well, no.  Cue is based on the evidence "at the time" (of the original decision).  Instead, new evidence is covered, not with CUE, but with 38 CFR 3.156.  Im not gonna repost the CUE requirements again, they have been posted on hadit many times.  However, "new evidence" is NOT required for CUE.  

If you have new evidence to file, well that is a great option to CUE.  Simply file under 3.156 B or 3.156 C, as applicable.  (3.156c is new "service records") while 3.156b is a pending claim where the new evidence is not contained in the service records, but rather AFTER military service, such as a doc exam where the evidence contradicts the denial.