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.

 

[Vync]

Remember, CUE has no time limit. You MUST be VERY specific. Don't use any vague reference such as "from March 2008, to approximately late July 2008". Find those dates and plug those in. The submission must be very clear so that reasonable minds come to the same conclusion about the alleged CUE.

Is your reference to 38 CFR 3.105 quoting the exact version from when the error occurred? If not, dig into the Federal Register and locate that exact language. With CUE, you are restricted to laws, regs, rules in effect at the time of the error. The same applies to rating criteria in effect at the time the error was made.

Also keep in mind that you cannot add any new evidence. It must be based on evidence at the time the decision was made. If the VA had possession of evidence, but failed to use it (i.e they misplaced it), that can be a CUE. They also cannot use reasonable doubt/relative equipoise

Also consider this, too, since you were hospitalized:
https://www.va.gov/disability/eligibility/special-claims/temporary-increase-for-time-in-hospital

@Dustoff1970 I used Akins v. Derwinski in my CUE due to the VA failing to follow proper laws/regs for pre-existing conditions. Nothing quite as crazy as the VA completely failing to determine the pre-service level of disability and simply deducting 10% because the VA examiner said I always had the condition.

I won another by disputing a rating reduction because the VA failed to look at evidence I sent in and was present in my c-file. It was proof that justified a continued rating. I did an in-person DRO meeting the the agent said the VA made another stupid decision. 

Also wanted to thank you for posting a bunch of CUE-related rulings from before 1995. I have a CUE at the BVA and plan to use a couple of them when I have my hearing.