tdiu Example Of A Good

[Berta]

I posted successful CUEs here before-

I keep trying to answer CUE questions with my own 2 CUes as examples- but I have not won the present 2 Cues I have ------ yet-

This is a great CUE claim-

http://www.va.gov/vetapp01/files02/0117428.txt

ORDER

"Restoration of a TDIU on the basis of CUE in the Board's

decision of November 16, 1982, is granted"

The board stated that the veterans did not fully alledge the legal errors with specificity.However the BVA got the point.

It was obvious legal error on VA's part.

In 1970 the VA awarded the vet TDIU.

In 1982 the VA terminated the vets TDIU award.

In 1993 the vet applied again for TDIU.

The VA awarded TDIU effective 1993.

The vet filed CUE on the termination from 1982 to 1993.

The vet won the CUE.This cases shows how the regs were misapplied- and caused the termination-

11 years retro at TDIU rate less any other SC comp he got.

Edited March 27, 2007 by Berta (see edit history)

[Vike17]

Berta,

I need to clarify something that was posted on another thread. You stated;

"A vet can NOD a CUE denial or ask for reconsideration, and they can fight the CUE all the way to the CAVC"

A veteran can't send a NOD on a denial of a CUE claim. If a CUE claim is granted, then the VA would issue a rating decision correcting the error at issue. However, if the VA denies a CUE claim, they would issue a SOC and the veteran could file a form 9 and continue the appeals process as any other appeal. As far as a "reconderation," I guess maybe this is the wrong term to use. If the VA denies a CUE by issueing a SOC, yes, the veteran could submit aditional "evidence" with the 60 days and have VA consider them and either grant the CUE or issue a SSOC. However, one must keep in mind, "new' evidence in this sense would have to be in the form of maybe submitting another or new regulation or law that they failed to take into account when deciding the CUE. "New" evidence in the sense of what the average lay person understands it as couldn't be submitted because as you know, the CUE must be based on the evidence of records at the time of the decision was rendered. Does this make sense??

Vike 17

[Berta]

I disagree.

I am looking at a denial from VA of my Cue claim of 2004 and it clearly states I can file a Notice of Disagreement.

I chose instead to file for reconsideration as they failed to consider my legal evidence and I also sent them more evidence.

If they fail to decide the Cue properly by June I will file a NOD.

I filed 2 NODs on Cues in 1998 and that is what triggered the I-9 to come and they were denied by the BVA.

RC awarded one 2 years ago and the RO this past August filed a Motion to Re-open the other one -at the BVA.

[theotherguy]

Berta is correct. An initial rating action on a CUE will be addressed by an RVSR since it is technically a "new" claim. If the claim is denied, the claimant is provided with appeal rights and may file a notice of disagreement if they feel the error call is still legitimate.

[Berta]

Other Guy-

I think one thing Vike and I and even you might agree on-

CUE is a collateral attack and a vet would not even consider filing a CUE unless they perceive a clear and unmistakable error-

what I mean is-when I got a denial I realised that someone (unlike the DRO and my AO claim) had actually read the CUE carefully-

they disregarded the legal evidence but in any event their denial was creative-

and if what the denial was based on was actual fact- the VA would have been correct. However the denial was based itself on an error.

SO_ I think any vet with a CUE should file for the Reconsideration right away upon denial-(but still watch the calendar for the NOD limit of one year)

because a vet with legal error in a past decision can probably always come up with more to expand the error-in my opinion----

I received another CUE decision on a different CUE issue -that was very bizarre and I asked for a clarification-

You reminded me that perhaps I better file a Reconsideration on that one too-the VA has never clarified it at all.

Edited March 28, 2007 by Berta (see edit history)

[Vike17]

Berta and Theotherguy,

The last two days I've been trying to find the references to my contentions as I posted them, but so far have not been able to locate anything. If I'm wrong, I'll certainly say so.

However, my thinking is and from what I've actually seen done with claims concerning CUE's seems to steer me in the direction I previuosly posted. All of the CUE claims I've done were appealed within the one year appeals period and, therefore, was addressed in the NOD with other issues. Then they were subsequently handled by a DRO and overturned with a new rating decision. So, in that sense I've never had to pursue a CUE claim beyond the DRO with perfecting it and going beyond the RO, or actually had to submit a CUE claim on a decision that has become final. Having said this, I do have a two CUE claims pending right now with a DRO that are from rating deccision that have become final. However, these two CUE claims are actually tied in with other issues from a recent rating decision and have an affect on those other issues, so I assume this is why the DRO has jurisdiction over them.

One other claim comes to mind that lend credence to both of our views. This claim was probably one of the most, if not the most, screwed up claim I've had to fix. The veteran received a rating decision for eleven disabilities, six of which were granted service-connection with low ratings, four of which were denied, and one item (which was an inferred claim) was not even addressed. In the appeal, all of the six conditions were raised with one of them being a CUE based on the wrong ROM, three out of the four denials for service-connection were granted based on CUE, and the effective date of three of the six conditions originally granted service-connection were corrected based on CUE (the RVSR missed the informal claim). Now the funny thiing is, and I think I posted this senario recently, that when I outlined all of the CUE's made in the rating decision, the Appeals Team sent the claim back to the Rating Activity to fix the effective date issue; they sent a new rating decision a couple of months afterwards correcting the effective dates. This give credence to what you contend Berta. However, all the rest of the CUE claims were handled by the DRO, giving credence to what I stated. This claim is still pending in the Appeals Team due to a couple of other issues still ongoing!

After looking through the M21 and M21-1MR, there also seems to be quite a bit of uncertainty of who has jurisdiction over a CUE contention and what is to be produced in response if the CUE is further denied; either a another rating decision or a SOC. Common sense would tell me that a claim of CUE is an appeal; one is appealing a final decision based on the fact of a legal error, so I assume(ed) that any contention of a CUE would be forwarded to the Appeals Team for action. Furthermore, I assume(ed) that since there has been a rating decision already produced, the only logical coures of action in this regard, if the CUE is further denied, is a issueing of a SOC. Also, I assume(ed) that since this is a CUE contention, that the provision of "reconsideration" can't apply because this can only be carried out by submitting "new" evidence, which we all know "new" evidence can't be considered in a CUE claim.

I posted a question about this on the VBN and maybe someone over there such as "Cruiser," or "Adder187" could give the skinny on this to see what is what. As soon as I receive a response, I'll post it here for everyone to see and if I'm wrong I'll certainly say so. I take enormous pride in giving and posting accurate claims advice and I wouldn't intentionally give out the wrong information.

Maybe we're all right?????

Vike 17

[john999]

Berta

If the VA used a 1989 medical report as evidence to deny a CUE on a 1972 final RO decision then could I ask for reconsideration. The VA is using newer evidence to deny the CUE and issued a SOC that uses the 1989 medical report and also uses other evidence that was not in the record in 1972. How can I be denied use of new evidence when the VA used evidence that was not part of the record in 1972. The decision does not make sense and I don't know if I should file the NOD or a reconsideration request. The VA did send me my appeal rights for the CUE so they must think it can be appealed.

[Berta]

John- how are you shaping the CUE as to their legal error?

I think reconsideration is the best bet if the NOD clock is watched too-

Have you fully accessed OGC opinions and any thing else that might provide more evidence?

Then again I always heed what Vike says-

Vike- good point- I was unaware that a DRO would even handle my CUES but the VA never allowed me to elect a DRO review on these CUEs. Yet.?

Maybe I misunderstood you in that regard-

Check this out Vike- I never got a legal VCAA notice on my AO death claim but the VSM-in a letter defining my issues- promised me VCAA letters on the 2 CUEs. ?????

This is absolutely not VA case law-I couldnt believe it!

VCAAs dont come when CUE is filed but it would be a hoot if the VSM did send them.

I would be delighted.

You are right too as to this:

"there also seems to be quite a bit of uncertainty of who has jurisdiction over a CUE contention and what is to be produced in response if the CUE is further denied"

And the fact that CUES do succeed at the BVA and the CAVC proves what you said.

[theotherguy]

Berta/Vike

What I've always found confusing is that the court mandated that a claimant must identify certain specific facts and contentions in order to have made a valid CUE call. Certain RO's believe that the specifics the court mandated should be provided in a notification letter to the claimant for he/she to respond to with a statement in support of claim explaining their contentions. While there is no actual VCAA development, I think these stations believe that it falls under Duty to Assist. Even the stations that do release the letters are inconsistent as to whether it should be sent or not. I can't find that this has ever been fully explained anywhere I have researched.

Personally, I think that "reconsideration" is a term to loosely thrown about and the VA is largely to blame for this. Frankly, when the DRO process was initially implemented, many DRO's saw an opportunity to reduce the number of incoming appeals by telling the VSO's about requesting reconsideration. They based this on the fact that many of the appeals they were granting were due to new evidence received after the previous decision. Whether or not this is actually the case is debatable, I do think that there probably is some merit to that argument, but I also believe that a lot of that new evidence is created by having a more experienced decision maker having access to the file (new and better VA exams, hearings, identifying pertinent service or clinical records which were not obtained initially).

I do agree with Vike about the evidence required to make it a valid request. These typically are claims which are within a year of the previous decision in which a claimant can provide the evidence which was "missing" to resolve the claim and not go through a lengthy appeals process. An example would be a VARO awarding a 10% evaluation for DM2 on a veteran with in-country service and evidence from a couple years prior showing the diagnosis with diet control only. The veteran subsequently submits a request for reconsideration shortly after the decision which provides that he is using prescription Metformin. Because the decision is not yet considered "final," the RO should increase the evaluation to 20% back to the date of claim for the rating which established the previous 10% evaluation.

Just my 2 cents worth

Edited March 28, 2007 by theotherguy (see edit history)

[Vike17]

Berta and Theotherguy,

Well, it looks like we were all right in our assumptions based on what we have had as CUE claims. I've cut and pasted responses from "Adder187" and "Cruiser";

"Hi Vike,

I can't give you specifics since I don't have these references at home with me...but I can look them up at work and get back to you tomorrow if that is ok?

What I can tell you is that I have rated roughly 20 CUE claims during the past year. I suppose whether or not a DRO or an RVSR handles the issue would be based on how the contention is presented by the claimant. Our station perceives a CUE review as a new claim and this is under our DRO's guidance...so I would assume it is legit.

I have not been rating claims for a terribly long time yet and have not yet been introduced to completing Statement of the Case's (we have appeals team RVSR's for that)....so I can tell you that both CUE grants and denials may be completed in a standard rating decision.

You are correct in stating that new evidence would not be able to be factored in a CUE claim since the evidence would have to be of record in the claims folder to constitute an error.

I have seen instances, especially recently with returning National Guard and Reserve soldiers, where we receive additional service records after discharge but have not reopened the claim for review. This was a clear error on our part...but a CUE rating would not be necessary since any benefits established could still go back to the earliest date possible based on the latent receipt of records in government possession. By the way...we have addressed the problem so it doesn't adversely effect additional vets.

Hope this helps answer your question...

If I can add anything further or you want me to get back to you with the specific procedures we are using...just let me know. I'll do what I can to help you out! Hopefully "big brother" will add some more to this when he gets a second or two free from helping everyone else on the board!!! What can I say...Cruiser is the man!

adder

OK, adder. Your check is in the mail.

A claim of clear and unmistakable error (C&UE) is simply a rating issue that can be handled by a Rating Specialist just like any other claim UNLESS it is part of a Notice of Disagreement filed within the appeal period. Then it would be handled like any other NOD depending on whether a traditional or DRO review was requested.

The real reason for the C&UE regs is to provide a means to look at issues that have become final and no longer subject to appeal. It provides a means to correct an obvious error and preserve any applicable effective date. At the same time an ERROR must be just that, an error; rather than a simple difference of opinion. And like adder said, it must be based on the exact same evidence that was in front of the original decision maker.

There are several lengthy threads on this forum about what is and what is not a C&UE so I'm not going to go down that road again at this time. Just let me say that the legal definition of C&UE is not what most people would call an error. It is a very high threshhold to get over because most decisons are based in large part on the decision maker's judgement. Bad judgement is not usually C&UE. There is a one year appeal period to address bad judgement.

Once the appeal period expires you must be able to clearly show that a regulation was applied incorrectly or the available evidence was, in the opinion of any reasonable person, wrongly misconstrued and that mistake directly led to an erroneous conclusion. This is by design a very high threshhold that is not usually met when such a claim is filed.

Cruiser

Vike 17

[Stan n Pam]

I would like to add my 2 cents here........

huh...????????? say what....???????? who knows all this STUFF...???!!! :-)

seriously now... I would like to say - that the respect level, for others on this site, is exceptional

- and that speaks volumes about you all -

thanks for what you do,

p

[theotherguy]

Vike,

Thanks for posting their responses. It does seem that we were all beating around the same bush in a round about way!!!

How or where did you meet these two? Do they post here or on another website? Sorry if this is rehashing on something everyone else knows or if talking about another website is not a good idea here...

They seem like they are interested in helping vets out and I'd just like to know how I could ask them a question or two in case I run into something I can't figure out on my own.

Thanks again

Edited March 29, 2007 by theotherguy (see edit history)

[Vike17]

Theotherguy,

"Cruiser" is a retired DRO that worked for VA in many capacities (as a RVSR, DRO ect...) for over 30 years. It appears that Cruiser as registered here, but has not posted probably for variuos reasons.

"Adder187" I believe was an SO and the now is working for the VA as a RVSR. He has also been aroung the block so to speak with VA claims issues.

They both post quite regularly at the VBN (Veterans Benefits Network) message board; http://p203.ezboard.com/bvetbenefits

Tbird, I'm by no means trying to promote another website on your board, but if you think this is not appropriate, please delete the link and accept my apologies.

Vike 17

Edited March 29, 2007 by Vike17 (see edit history)

[theotherguy]

Cool. Got it...feel free to delete/edit your post so that we don't ruffle any feathers.

Thanks

[Vike17]

Theotherguy,

I'll leave the link up until Tbird or the other moderators tell me to delete it or they do it themselves. Maybe the link can help out a veteran with a question that can't be answered here?

One thing I do want to stress about the issue of CUE while we are having such a discussion on it is that for the most part a CUE is relatively rare in the whole scope of things within the VA. This is be design as the VA has probably the most generous appeals sysytem there is when it comes to disability compensation. If one thinks VA is chaos now, can you imagine what VA would be like if there wasn't the provisions of the CUE.

A while back I wrote a self help guide for veterans who are seeking information on VA benefits and so forth, and one of the subjects I addressed in this giude was the CUE. Here is that portion of the guide, it is very important when trying to understand the CUE issue (I would like to thank Cruiser for some of the information and explanations in this piece, some of which were derived from his explanation of the CUE on the VBN):

Clear and Unmistakable Errors (CUE):

The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.

Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurate portrayed the current overall limited range of motion. CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim

The link to the whole guide I had written for Tbird is;

http://www.hadit.com/plugins/p2_news/print...p2_articleid=13

I hopoe this is able to help in the understanding of the CUE and the "process" in general.

Vike 17

[Pete53]

Many Vets think that they have a CUE Claim. Very few prevail. However, it never hurts to ask.

[Berta]

Gee I was going to put a link to Cybersarge for an AO question here-

I for one see no reason not to post from other sites-I post Colonel Dan stuff all the time-he sent me so much lately I havent even read it all-

"You are correct in stating that new evidence would not be able to be factored in a CUE claim since the evidence would have to be of record in the claims folder to constitute an error"

Right- I might have given wrong impression-Vike-

I sent VA clear statement of their legal error- citing VA case law-in my CUE claim.

I sent as additional (new?) evidence-- the VA's own interpretation in 5 BVA decisions -that could be specific to my CUES- due to same legal error- but the best evidence I sent was an Office of General COunsel Pres Op.The Pres Op- re: SMC and 1151 awards was not a new Pres op- it just was one more thing to show VA that they erred.

I also sent in as evidence the part of M21-1 that shows them what they should have done and didnt do in the award I am cueing.

So-I didnt mean more medical evidence -I just expanded on VA case law that says my CUE is legit and they broke established VA case law when they rendered that old decision.

Vike said a mouthful here- this bears repeating as many think they have CUE basis but they really dont- conversely I see stuff that might have had potential CUE in past awards-but it takes lots of time to look for that stuff. Service officers should really do that on a re-open but in my case

I honestly dont think 2 of my vet reps have any idea at all on what CUE claims are. They dont come up often compared to all the other claims.

"One thing I do want to stress about the issue of CUE while we are having such a discussion on it is that for the most part a CUE is relatively rare in the whole scope of things within the VA. This is be design as the VA has probably the most generous appeals sysytem there is when it comes to disability compensation. If one thinks VA is chaos now, can you imagine what VA would be like if there wasn't the provisions of the CUE."

I sure agree and CUE can rectify a past VA error-

as I well know-by past experience.

But I also remember I was denied at the RO and the BVA-it took the RC to award that CUE-and only because I re-opened a claim and Regional counsel caught the same error that I fought them over for years.

No one at RO or the BVA saw it- a prime facie case of CUE.

Cue is a wonderful provision and one of the best parts of VA 101-

but one of the most misunderstood and any discussions on CUE are always revealing.

[john999]

I requested a reconsideration of my CUE denial and I am going to see what happens. I don't want this claim to go to the BVA because it is filed with procedural errors and it may sit for years and be remanded. I am going to try to keep it local since the CUE was decided with two other ratings that are also flawed. I don't want to let these claims get away from the local RO until a lawyer I know begins to do VA claims later this year. I have a year to file the NOD.