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Is this a CUE?

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Chief1954

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Greetings! I was recently approved for cervical spine, service connected, at 10 percent but I haven't received the envelope yet to see what it says. My end of service VA rating was denied in 2000 and four follow on decisions were also denied. Here's my question, I believe the VA made a critical error in deciding my initial cervical spine claim. The claim folder didn't include their X-ray that showed 'neck trauma and spasm and other conditions ' that wasn't mention in their final decision. That information would have changed my rating. Can I submit a CUE?

Best Regards

Chiefhouse00 

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I moved this from another topic to get you more and better answers.  I will put in my 2 cents:

This may not be CUE, but it would take a complete review of your file to know if there is cue or not.  

However, dont give up, it "screams" 38 CFR 3.156 to me.  (Reopening the claim due to new evidence), since that missing evidence could well have been a difference maker.  

My advice is to review your medical file, along with the RO decision.  If its within a year, then just file a NOD.  

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15 hours ago, Chief1954 said:

Greetings! I was recently approved for cervical spine, service connected, at 10 percent but I haven't received the envelope yet to see what it says. Can I submit a CUE?

Holster filing that CUE Claim. We all know that there is no time limit in filing a CUE Claim. So, in my opinion you have time.  Since you are waiting for a new rating decision, if you disagree with the rating percentage and or the effective date, the simplest and easiest way to try to correct those errors is by filing a timely disagreement (Within one (1) year of the decision notification letter).

Filing a timely notice of disagreement could/would get veterans exactly the same benefits as filing a CUE claim but it would be a lot easier. CUE claims must be specific and they have to get over the reasonable minds clause to be awarded.  CUE claims have a much higher threshold then filing a timely notice of disagreement (NOD).

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Agree with both @broncovet and @pacmanx1. Wait for them to make their decision so you can see what it says. New and material evidence is definitely an option.

You may have to dig in the Federal Register to see what laws/regs said when they were in effect between when you initially filed and were granted repeated denials. The VA never bothered to fully share all of their evidence in my initial rating decisions until many years later when I requested my c-folder. In your case, if you win SC, like they said you might be able to pursue an earlier effective date and SC based on evidence of record. Keep in mind that even if the VA either authored or was in possession of favorable evidence, yet it was not before the person who made the decision, that is still considered constructive receipt and can be brought up later. Get SC first, then look to get the effective date and rating % backdated/corrected. If I had known to do this via N&ME, I would have, but I was successful doing it with a CUE many years later (but it was not easy). Good luck!

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