I have decided it is time to file a CUE, now or never

[retiredat44]

Ok, so I have decided now or never as my health is still going downhill.

Looking at a cue, using some info from these forums reqarding examples of CUE's.

 

I put together the following draft :

(I wasn't sure about the including of all the paragraphs in the dating decision, so while P printed them all in that last letter of entitlements granted, I emphasized the one that is more to the point of the CUE.)

 

Veteran:
XXXXX XXXX
XXX-XX-XXXX

Litigation Support Branch

Board of Veterans’ Appeals

P.O. Box 27063

Washington, DC 20038

Claims and Appeals regarding Necrotizing Pancreatitis and U.S.C. 1151 benefits dated 2012. Actual VA 1151 injuries occurred at the VA Hospital that Veteran was an inpatient from March 2008, to approximately late July 2008, with additional home care nursing that followed appointed to the Veteran by the VA. 
Injuries occurred March 2008 during Pancreas procedures and hospitalizations at VA Hospital, La Jolla, Sand Diego, California.
Because of extreme serious health issues, Veteran (Myself was unable to file) until 2009 for the necrotizing Pancreatitis and of the related issues because of serious health and mobility issues. Also, My heath diagnosis changed from
one diagnosis to another during the 25 year constant changes in severity of the original conditions for which I suffered, starting from Active Duty, to the onset of total disability illnesses. All the way to present.

Also, the 1151 claim (several claims included before this date) followed in 2012, after some legal counsel explaining my options during claims and appeals. I had no knowledge of my full rights, and taking many years of legal help searches and some representatives that were not fully qualified to represent my case.

I, XXX SSSSS, therefore, submit and ask a CUE on the effective date be changed according to the following Veterans Laws:
“clear and unmistakable error” (CUE) 
Under 38 CFR §3.105
 
To reiterate:
Veteran is asking for CUE for the effective date to match the date of injuries, the date of filing claims for those injuries and illnesses. 
And not just to the date of filing the CUE as : “clear and unmistakable error” (CUE) 
Under 38 CFR §3.105 - Effective Dates of Awards.

=============
Department of Veterans Affairs Original Agency of Jurisdiction

Regional Office

===============
REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR 2019 DECISION

I respectfully request the VA to call a clear and unmistakable error on part of the above 2020 decision from the Portland Oregon VARO/BVA and to correct it.

The VA's CUE lies within the first statement, " Evaluation of chronic necrotizing pancreatitis... " . on page 01 of the Rating Decision: November 3, 2020 decision :

“ Evaluation of chronic necrotizing pancreatitis, which is currently 60 percent, disabling, is increased to 100% effective July 24th, 2012. "

“ Evaluation of psychiatric disorder, to include an anxiety or depressive disorder, which is currently 30 percent disabling, is increased to 50% effective July 24th, 2012. "

“ Entitlement to special monthly compensation based on criteria being met is granted from July 24th, 2012. "

The veteran, XXXXX XXXXXX was totally and permanently disabled by his March 2008 Section 1151.

The VA's failure (CUE) to consider and evaluate the evidence VA had in their possession manifestly altered the outcome of the decision referred to above , November 2020, to my detriment as the claimant.

“clear and unmistakable error” (CUE) 
Under 38 CFR §3.105

Note:
No one is currently representing me, I am currently representing myself. As no one else has any claims (Legal and/or Monetary) to any claims of mine at this time.
note(1) My Wife (XXX XXXX) is legally my Caretaker, and is recognized as such by the VA.
XXXXXX XXXXXX
09-06-2022
=================

 

thank you in advance for any help in writing this.

 

[Dustoff1970]

As one who has on my own pro se filed a CUE claim and appeal all the way to the U.S. CAVC veterans court with a successful decision by Judge Harold Greene in 2005 I will tell you that you have to be extremely detailed and specific in your CUE contentions.  As expected in my case both VARO and BVA were very quick to deny my CUE claim that contained 4 separate CUE contentions, so I was already ready to appeal to the CAVC.

Here are a few examples of successful actual TRUE CUE claims citing actual violations of the specific VA 38 CFR regulations and/or U.S. Title 38 Code (actual congressional law on VA claims). 

The following are some examples of successful CUE claims:

VA’s failure to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).

VA’s failure to apply applicable, existing regulations or statute at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).

VA’s failure to follow the regulations that govern whether an existing disability rating should be reduced, namely 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002).

VA’s failure to properly apply the Schedule of Rating Disabilities. Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991).

VA’s failure to apply 38 C.F.R. § 3.303(b) which establishes a presumption of service connection for chronic diseases diagnosed in service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008).

VA’s failure to apply the regulation that governs conditions that preexist service. Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991).

My 4th CUE contention was the failure of VARO to adjudicate my requested PTSD TDIU claim with EED of 1991.

In my CAVC CUE appeal Judge Green said my 4th CUE contention was in fact a due process error and remanded my claim to the BVA and VARO to adjudicate my 1991 to98 PTSD claims for TDIU. 

More later.

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

[broncovet]

I agree with dustoff.  I would not send a cue to washington dc, it needs to go to (probably) Janesville.  If you are disputing a VARO decision (sounds like you are), then cue is filed at the vARO level.  

Specifically state how/when they did not comply with the applicable regulation.  

Example:  (dont use my example!!)

  The Regional office decision dated Feb.4, 2019 (notice the complete date, not just the year) "did not" list my exam dated 4-19-08 which was a favorable exam where the examiner opined "its at least as likely as not that this condition is related to military service".   

    The VARO failed to explain why this favorble exam was not considered, and, instead, considered "only" less favorable medical evidence.  

    This is a violation of 38 CFR 4.6, which states, in pertinet part:

Quote

Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied

Instead, the VARO simply denied my claim and did not consider the probative value of this above addressed evidence.  

[retiredat44]

My claims was decided/finalized at the BVA level. And it has been a couple years, since the claims were settled. So, mine has to go to either where the bva office was, or the regional which then was moved to the BVA appeals for many years. In my case the BVA was out of Portland, Oregon. So, I believe the regional is not part of this, but please show me if I am wrong. This is why I hate trying to be my own legal rep. Everything contradicts every other thing. A mind F***. I am at least referencing the last decision made. I don't not believe this is re-opening a claim. Only a correction. Just the wording and where to send it. Thank you, I really do appreciate the help. 

Edited September 10, 2022 by retiredat44

[Dustoff1970]

The VA Janesville, WI Evidence Intake Center is now where all claims are sent for disability compensation regardless of what state the veteran lives in.  This has been effect for several years now.

At the Intake Center the clerks scan your claim forms and other documents you send with your claim into a VA nationwide computer claims system and VA VSRs and Adjudicators from any regional office then reviews your claim and documents for making an eventual rating decision.  Do not staple your documents together but use paper clips instead.

I understand that sometimes some work from home such as medical consultants they may use to make a determination.  BrokenSoldier is a VSR and can provide more accurate explanation.

U.S. Department of Veterans Affairs

Evidence Intake Center

P.O. Box 4444

Janesville, WI 53547-4444

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

 

Edited September 10, 2022 by Dustoff1970

[broncovet]

So, are you attacking a BVA decision, or VARO?  

It sounds like you dispute the board decision. 

Even if BOTH decisions are wrong (BVA and VARO) you need to attack "one" of them with a Cue, I dont recommend you "file a CUE" which encompasses multiple decisions.  

When bird hunting, when a flock flies over, you have to take aim and choose a single bird, you will almost never get one "by shooting into the flock at any bird".  

(I made that mistake..attacking multiple decisions with a cue..you need to focus not only one ONE decision, but on a sentence or so that you can point to is in error.)

Berta's favorite (our CUE expert) was to attack using a violation of 38cfr 4.6, a portion of which I quoted, above.  

 Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied.  

The above does not give the VA any wiggle room.  

[Dustoff1970]

You can file a CUE motion directly to the BVA if you believe BVA made the CUE error on your appeal.  Here are the instructions directly from VA/BVA form VA FORM 4597, OCT 2019, PAGE 2.

 

 

"If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance:

Appeal to the United States Court of Appeals for Veterans Claims (Court)

File with the Board a motion for reconsideration of this decision

File with the Board a motion to vacate this decision

File with the Board a motion for revision of this decision based on clear and unmistakable error.

Although it would not affect this Board decision, you may choose to also: File a Supplemental Claim with new and relevant evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a Supplemental Claim at the local VA office.

Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts.

If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved."

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

Edited September 10, 2022 by Dustoff1970