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Clueless On Cue


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#1 demeat

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Posted 16 April 2012 - 05:27 AM

I was trying to get an understanding on how CUE claims work. The information that I am reading is a bit overwhelming and confusing to me. I have a couple of questions to help me understand CUE.

1. How can I find out if this type of claim is best for me?
2. When can I file CUE?
3. If there a certain form that I would need to file?

I am not sure where to begin but any information would be grateful 😃

#2 Berta

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Posted 16 April 2012 - 06:13 AM

99 % of all CUE claims are filed only on final, and unappealed VA decisions.

The decisions must contain legal errors that changed the outcome to the veteran's detriment.

The medical evicence must be clearly established at time of the alleged CUE.

I can give my personal example.

In 1998 I received.a DIC award letter under 1151. My former rep indicated the decision was correct because of the issue it involved and didnt advise me of filing a NOD.

After I reopened for direct SC death DIC years later I realized the older decision contained 3 legal errors.

The legal errors would have warranted a posthumous SMC award, therefore more retro .

Had they not involved more retro those errors would have been moot.(this is what VA means by "manifested and altered outcome."

Over seven years after filing the CUE claim, the VA awarded the CUE this January. due to their legal errors in the 1998 decision with a retro based on the medical evidence VA had in their possession at time of the decision that contained clear and unmistakable errors.

There is no form for CUE claims.

The claim should be very short.

State the date of the denied decision that contains the CUE and then state the legal errors the VA made.
The 1% I estimated is that a claimant can ask the VA to CUE itself and I have done that successfully, at least twice,or more - once in 2005 and also this past December.

I am sure a few others here have done that too.

It requires getting a decision on a pending claim that contains a legal error so profound that the VA must either re-do the decision,or take steps the claimant asks for, to satisfy the VA's legal responsibilities in M21-1MR.

In my case above, the legal errors they made were threefold:

1. no consideration of SMC when the medical evidence warranted the mandate of SMC to be applied to my 1998 decision.
2. a completely wrong diagnostic code rating for my husband's 1151 stroke in the 1998 decision
3. a complete lack of any rating or diagnostic code whatsoever for my husband's fatal IHD, under 1151 at that time (1998)and now rated under AO as SC. The medical evidence in VA's possession in 1998 clearly warranted all of above.

Edited by Berta, 16 April 2012 - 06:19 AM.


#3 Berta

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Posted 16 April 2012 - 07:05 AM

Are you the same vet who posted in another forum here that the BVA ombudsman said your claim was still at the VARO?

If so, I see no reason you should involve yourself with CUE at this time.

You can still send the VARO evidence and, when they transfer the claim to the BVA you can send the BVA more evidence.

Can you scan and attach here the Reasons and Bases they denied your claim for? (cover personal identifying stuff)

#4 demeat

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Posted 17 April 2012 - 01:42 AM

Hey Berta,

Yes it is me the same Vet from before who you gave the information to the Ombudsman Posted Image. The appeal that I have is still pending but, I had a claim that I was questioning was for my bi-lateral knee condition which I was granted back in 2009. From that claim, they granted me 20% disability and retro paid me for a couple of years. When I asked how come my claim was only granted for partial payment, I was advised by my VSO that it was because I let the claim drop close out, without filing an appeal, I was informed that it started the clock back over.

I have spoken to a disability lawyer and was informed that I could fight to receive payments back from my first filing, but I am not really comfortable to pay someone for paperwork that I could file myself. I have done alot of reading (still new and slow to the whole process) and I am now seeing that I am not the only one who has suffered by the hands of the VA, just halfway righting wrongs just to pacify a veteran.

I am now at a junction in my life where my disabilities with my feet and knees are now causing me not to enjoy my kids and I am not being able to be as active as I once was (only 35), hence the reason why I am now started to become more aggressive at trying to seek out information and close the tedious chapter of the VA in my book of life. I know something good is around the corner but the barriers that I am receiving from the VA nowadays as well as my local VSO are just not sufficient and the vast information that I have been reading from this forum and stirred up some fight in me.

I hope I haven't rambled on too much, and I greatly appreciate the information that you have provided me. I will try and scan the decision that I received pertaining to my knee condition, but I am not sure what part of the forum i should attach it to.

Thanks again Posted Image Posted Image

#5 Berta

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Posted 17 April 2012 - 06:03 AM

Now I understand the CUE question:


"I had a claim that I was questioning was for my bi-lateral knee condition which I was granted back in 2009. From that claim, they granted me 20% disability and retro paid me for a couple of years. When I asked how come my claim was only granted for partial payment, I was advised by my VSO that it was because I let the claim drop close out, "without filing an appeal, I was informed that it started the clock back over. "


The VSO was right , as I think it appears they proposed a reduction which you didnt appeal. ???

But the original bilateral rating might possibly contain a CUE..


If the diagnostic code was wrong or the rating was wrong based on the wrong diagnostic code being wrong, and the rating should have been higher than 20% at time of that decision (based on medical evidence in VA's possession at that time)
that would be a CUE.


But there are other types of CUEs that VA makes.


We have Cue claim links here to BVA decision both awarded and denied CUEs and they are a wealth of information as to identifying CUEs based on legal errors.


As this case shows(not a CUE but contains info as to bilateral knee disabilities)
http://www.va.gov/ve...es4/1039687.txt


bilateral conditions have separate ratings but then I believe (I am not the VA math expert here) these ratings are “combined.”
Was the 20% rating a combined rating?

What was the rating for each knee on the actual rating sheet?

As the BVA decision link shows, this vet successfully raised his original bilateral percentage.

I would think that any increase in disability for one of the bilateral condition, necessitates the same increase for the other bilateral arm,leg, etc affected as It makes sense.

In your case I think the original 2009 decision that granted the 20% and was not appealed, is the decision that could hold a CUE, if VA in fact committed CUE.

"I have spoken to a disability lawyer and was informed that I could fight to receive payments back from my first filing, but I am not really comfortable to pay someone for paperwork that I could file myself. I have done alot of reading (still new and slow t..."

That is what I mean too-seeking CUE in the initial claim filed as the lawyer indicated.

#6 AF1982

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Posted 05 June 2012 - 06:07 PM

Dear Hadit; I have just received a severing decision to my sc knee. The decision argues within itself...; it acknowledges my dislocated patella in the service and that a later automobile accident doctor verified it was an old injury, reaggravated by the accident.

Due to the area of AF service I was in, after I received my honorable discharge in 82 I just wanted to forget the military existed and wanted to try to move on with life. I was never one to run to doctors with my discomforts, as those who know me attest.

My knee was always a problem after the service injury; I just dealt with it, using my sleeve-brace and avoiding certain physical things when the knee would flare up.
7 years after my service I was in a work-related auto wreck and reaggravated my knee. The work-comp doctor documented it was an old injury reaggravated.

In 2002 my knee was at the point where it was dangerous to me. I'd already had one fall and the constant locking and swelling was driving my wife up the wall. So, I sought VA Voc Rehab and was told I also qualified for SC benefits. My disability was evaluated and recognized at 20% at that time. I wasn't seeking SC benefits, only Voc Rehab, but VA said I qualified for both. I told them about the 1989 auto wreck, as I had no intention to lie to them and they asked for my history. I was approved for Voc Rehab and SC disability at 20% in 2002.

In 2005 my rating went to 30%. 2006 and 2007 I had (2) knee replacements (of my problem knee). The 2nd was due to the first messed up by the VA doctor. My rating went to 60% and my back, neck and hips (and good knee) have been affected by my shifted body-weight being carried.

Following a dismissed med-mal suit against the VA surgeon of the 2006 knee replacement, the VA (U.S. District) attorney emailed VA claiming my disability-injury was not service-connected. This claim was NEVER MADE or even INFERRED, during the lawsuit. This attorney is NO LONGER a U.S. District attorney, as he left that office when I requested a FOIA of his notes and contacts concerning his claim.

My Congressman is involved, and has been the ONLY WAY my attorney and I have been able to get VA to respond to our letters and/or his legal requests in the matter. I have requested an electronic copy (email) of the Sever Decision, and when it is received, I would greatly appreciate your input.

Thank you - I look forward to hearing back.

#7 carlie

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Posted 06 June 2012 - 06:20 AM

Dear Hadit; I have just received a severing decision to my sc knee. The decision argues within itself...; it acknowledges my dislocated patella in the service and that a later automobile accident doctor verified it was an old injury, reaggravated by the accident.

Due to the area of AF service I was in, after I received my honorable discharge in 82 I just wanted to forget the military existed and wanted to try to move on with life. I was never one to run to doctors with my discomforts, as those who know me attest.

My knee was always a problem after the service injury; I just dealt with it, using my sleeve-brace and avoiding certain physical things when the knee would flare up.
7 years after my service I was in a work-related auto wreck and reaggravated my knee. The work-comp doctor documented it was an old injury reaggravated.

In 2002 my knee was at the point where it was dangerous to me. I'd already had one fall and the constant locking and swelling was driving my wife up the wall. So, I sought VA Voc Rehab and was told I also qualified for SC benefits. My disability was evaluated and recognized at 20% at that time. I wasn't seeking SC benefits, only Voc Rehab, but VA said I qualified for both. I told them about the 1989 auto wreck, as I had no intention to lie to them and they asked for my history. I was approved for Voc Rehab and SC disability at 20% in 2002.

In 2005 my rating went to 30%. 2006 and 2007 I had (2) knee replacements (of my problem knee). The 2nd was due to the first messed up by the VA doctor. My rating went to 60% and my back, neck and hips (and good knee) have been affected by my shifted body-weight being carried.

Following a dismissed med-mal suit against the VA surgeon of the 2006 knee replacement, the VA (U.S. District) attorney emailed VA claiming my disability-injury was not service-connected. This claim was NEVER MADE or even INFERRED, during the lawsuit. This attorney is NO LONGER a U.S. District attorney, as he left that office when I requested a FOIA of his notes and contacts concerning his claim.

My Congressman is involved, and has been the ONLY WAY my attorney and I have been able to get VA to respond to our letters and/or his legal requests in the matter. I have requested an electronic copy (email) of the Sever Decision, and when it is received, I would greatly appreciate your input.

Thank you - I look forward to hearing back.


AF,
It would be best to START A NEW TOPIC with your questions and information.

#8 carlie

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Posted 06 June 2012 - 06:25 AM

I was trying to get an understanding on how CUE claims work. The information that I am reading is a bit overwhelming and confusing to me. I have a couple of questions to help me understand CUE.

1. How can I find out if this type of claim is best for me?
If it is very clear and undebatable that a law, reg, rule or M21-1MR instruction
was mis-applied to the detriment of the claimant.

2. When can I file CUE?
Anytime after a unappealed decision that has become final (by not submitting a NOD
within the one year time frame).

3. If there a certain form that I would need to file?
No special form to file it on - I suggest a 21-4138.
Also, the issue of CUE is submitted to the AOJ that made the alleged CUE
whether it be the VARO/BVA or CVAC.
In other words, if you feel your VARO made a CUE - that can't be submitted 1st time around
as an issue included at the BVA level as (even with a waiver) it will be remanded back to
the VARO for adjudicative action.
One of the more important things regarding CUE's is HOW IT IS FILED.


To merely to aver that CUE occurred is insufficient and there are so many situations that

a claimant feels is a CUE - BUT MANY ARE NOT.


IMO - the majority are just plain old poor decisions.


Remember the VBA decision makers own the scale on the assignment of the amount of

weight afforded to each piece of evidence.

For CUE issues most factors of DTA go right out the window, inadequate C&P's-

well throw that out the window too, lack of notification of exam's or decisions, etc...


"In asserting a claim of CUE, the claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).


The Court has further elaborated that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. See Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id."


You can do a BVA search for more CUE research, here's a link to start.

http://www.index.va....PP=10&UA=Search

JMHO - carlie

I am not sure where to begin but any information would be grateful ��