Cue

[john999]

If a vet's CUE is properly filed and denied at the VARO then is the next step the BVA?

There is no way a DRO is going to grant me CUE, not at my VARO.

[carlie]

Rocky,

Read over what you posted here - it doesn't match up to CUE regs.

You'r post:

" The CUE is when the evidence WAS in front of the adjudicator at the time the rating decision was made. It is not CUE if the evidence WAS NOT in front of the adjudicator."

"Clear and unmistakable error" is the kind of error, of fact

or 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. See Fugo v. Brown, 6 Vet. App. 40, 44

(1993). An asserted failure to evaluate and interpret

correctly the evidence is not clear and unmistakable error.

See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994).

There is "clear and unmistakable error" when either the

correct facts, as they were known at the time, were not

before the adjudicator or where the statutory or regulatory

provisions extant at that time were incorrectly applied. A

determination that there was clear and unmistakable error

must be based on the record and the law that existed at the

time of the prior decision. See Russell v. Principi, 3 Vet.

App. 310, 313-314 (1992). Subsequently-developed evidence is

not applicable. See Porter v. Brown, 5 Vet. App. 233, 235-

236 (1993).

carlie

Edited March 20, 2007 by carlie

[Pete53]

Almost every Vet including my own self think that they have a CUE claim. I bet that there are hot a half dozen on Hadit that have won a cue claim.

Maybe we should post a poll on that issue?

[Berta]

Sometimes I see vets with a claim still pending who think it contains CUE by VA in an SOC or something-

Cue can only be filed on finalized claims.

That is a cue claim- from a vet or a widow.

The VA CUEs itself from time to time-

I asked them to CUE their own decision and they did in 1997 and also in 2005 and one other time-forget when-

regarding still pending issues I had.

The VA has cued itself in attempts to take VA comp away from two vets I worked with -they clearly stated they had committed CUE in the award.

One vet succeeded in overcoming this V cue- and the other is still waiting to here if he was successful.

VA granted a CUE claim I had in 1997, and also one from 1998 which they granted about 2 years ago.And I got them twice to CUE themselves-at least twice-

I await my present CUE claim decision.

A veteran or widow should not hesitate to use this means of "collateral attack"- as VA calls it- to rectify a past VA wrror that cost them money.

It pays for a vet who thinks they have CUE potential to read all the CUE info here at hadit, and read BVA CUE decisions, and CAVC CUE claims.

And to remember- CUEs are Legal errors, Not medical errors.

BUT the minute a rater writes a diagnostic code or refers to a rating schedule they are in the legal ballpark of claims- so this is how medical determinations can lend to legal errors when they use 38 CFR erroneously in the rating or the decision.

Benefit of Doubt and all duty to assist regs-VCAA etc-if VA violates them- do

not raise to level of CUE-

a vet has to knock down those errors right from day one when those violations of established basic VA rights to claimants appear in the VA SOCs etc.

Pete I bet many many vets have CUE potential-for more retro-

I only hope that when lawyers handle vets claims they will sure look for CUES in older decisions-

it will help them make more money as well as the vet get the proper comp-

Vet reps- I dont think anyone at my local POA vet rep office has a single CLUE on what a cue claim is.

It is their fault I had to file one-

They did not advise me properly in 1998 to file a NOD on an award I got.

The rep knew the award was wrong and said it- but then again I didnt know then what I do now.

He acted like it was no big deal.

That Cue is worth potentially 69 thousand clams.

Edited March 20, 2007 by Berta

[RockyA1911]

Carlie,

I believe you are taking some things out of context.

"Clear and unmistakable error" is the kind of error, of fact

or 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. See Fugo v. Brown, 6 Vet. App. 40, 44

(1993). An asserted failure to evaluate and interpret

correctly the evidence is not clear and unmistakable error.

See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994).

There is "clear and unmistakable error" when either the

correct facts, as they were known at the time, were not

before the adjudicator or where the statutory or regulatory

provisions extant at that time were incorrectly applied. A

determination that there was clear and unmistakable error

must be based on the record and the law that existed at the

time of the prior decision.[/u] See Russell v. Principi, 3 Vet.

App. 310, 313-314 (1992). Subsequently-developed evidence is

not applicable. See Porter v. Brown, 5 Vet. App. 233, 235-

236 (1993).

I take that to mean that the "must be based on the record and the law that existed at the time of the prior decision" and meaning that the evidence was a matter of record at the time and in receipt of the VA, but was not before the adjudicator. Had it been before the adjudicator, because the evidence would have manifestly changed the outcome. I take that to mean the evidence was in the VAs possession at that time and should have been before the adjudicator, but wasn't.

Mine, however clearly shows that the evidence was before the adjudicator and that he failed to apply the statutory and regulatory provisions extant at that time were incorrectly applied and "that when called to the attention of the later reviewers compels the conclusion to shich reasonable minds could not differ, that the result would have been manifestly different but for the error."

If the evidence was not in the VAs possession at the time the adjudicator made the rating decision, then it does not count, only evidence that was in the VAs possession and the record at that time counts.

Thus whether it was technically actually before the adjudicator, or wasn't but should have been because it was in the VAs possession at the time, but not in front of the adjudicator is the same thing to me.

The evidence at the time was either before the adjudicator or should have been before the adjudicator.

If the VA did not have the evidence at the time and it can't be proved that they did, then the part about were not before the adjudicator doesn't mean squat in my honest opinion.

[carlie]

Rocky,

Nothing was taken out of context, what you posted here, "CUE is when the evidence WAS in front of the adjudicator" is incorrect.

I did not post this correction in reference to YOUR claim or in anyway pertaining to Your claim,

or what you take a part of the regulation to "mean".

In your case - the correct evidence was in front of the adjudicator but Your CUE resides in that the

adjudicator failed to apply the statutory and regulatory provisions extant at that time.

It serves vets better to show the reg exactly as it is worded, rather than, parts of the reg, as you interpret it.

This is especially important, when every single word of it, "doesn't mean squat" in your honest opinion.

carlie

[Berta]

"If the evidence was not in the VAs possession at the time the adjudicator made the rating decision, then it does not count, only evidence that was in the VAs possession and the record at that time counts"

If that all occurred prior to July 21, 1992.Re : not only the medical evidence but also it pertains to the laws at the time-

Bell clearly involves BVA decisions made after July 21, 1992- it is a constructive rule-

I personally feel that any vet with a CUE claim with any dates in it that are pre Bell-(July 21, 1992) the vet should make a statement to overcome Bell in the CUE claim- this way some rater skimming our claim- does not hone in on these dates and try to deny under Bell V Derwinski.At RO or BVA level.

Bell involves a claim in which (per CAVC) medical records of the veteran were "constructively" in VA's possession even though not physically present in the claims file.

In my CUE I made sure that VA was well aware that VACO and the General Counsel had held constructively- documents in VA's possession- that were potentially not in the claims file at time of alledged CUE.They should have been in the C file-I sent them to the RO myself - but I dealt with the MF (Mysterious force)who was whipping the evidence out of the c file all the time- in any event these documents I felt they could pull a Bell on were clearly and constructively within VA's possession and still remain there at VACO and OGC in Wash. DC.

Bell is applicable to many primarily BVA decisions and not RO ones-

however I think a vet filing a CUE against a VARO should raise Bell before they try to-and defeat their attempt to use it against the vet.

The VBM makes this point- it is VA case law and fed circuit opinions that are more liberal to CUE claimants then the VA regs regarding CUE-

This is why established VA and CAVC and Federal Circuit case law cases have to be studied well and cited if needed -in order to prepare and produce a viable CUE claim.

Edited March 20, 2007 by Berta