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

[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

[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

[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