Clear and Unmistakable Error, or CUE, is one of the most misunderstood, misconstrued, miscombobulated legal concepts for Veterans to absorb. The idea of reaching back into the past to right a wrong is a wonderful thing we enjoy. As long as you understand this is going to be a knife fight in a dark alley and somebody’s feelings are going to get hurt, you jump in thinking justice can be attained. Nothing could be farther from the truth.
CUE must be blatant. CUE must be visible from across the room. People from all walks of life should be able to look at it and exclaim “Lookey, Bob. Take a good, long gander here. Thet there’s CUE. See thet?” CUE must also pass other tests which I will expound upon but I want to give you a feel for how it gets misconstrued by many and much judicial time is wasted dedicated to fruitless endeavors.
CUE rules are very simple in VA jurisprudence but as we will notice, the VA’s published standard and their actual tape measure, are far different. VA will indulge in the famous “bait and switch” using smoke for camo to deflect the CUE into the wrong legal argument. You’re busy trying to engage them in a discussion about how you got screwed on the rating in 1986 when you should be arguing about the error in the prior denial in 1982 where the real CUE began. VA is not going to point out the legal flaw for you either.
This is no-holds barred litigation. Nonadversarial went out the window with Benefit of the Doubt and a Veteran friendly environment in which to present your claim. A CUE claim is Perry Mason calling Hamilton Burger a chowderhead who isn’t familiar with the LA penal code- and probably never will be.
Many have talked of CUE but the essence is never quite captured. Let me attempt to shine a light that dispels what it isn’t first. Many Vets come to me and show me evidence that clearly refutes what happened in, say, 1986. Okay. Move to the next disqualifier. Was this evidence part of the record in 1986? Good. Was it open to two different, equally compelling theories, either of which could have been correct? Yep. Then you lose. You can’t come back for a do over and argue how the facts were decided. This is perhaps one of the hardest legal concepts to learn. It has to be a Holy Shit, Batman-epiphany error. Reasonable minds can concur that, but for that one (or more) error(s), a completely different “butterfly” line of history would have happened.
Was it a diagnosis that said acute in 1986? A later diagnosis, not part of the records, saying chronic now refutes it. Yep. You lose. A newer diagnosis that states it was chronic back when you filed was not part of the record in 1986 and cannot be introduced in evidence. The Motion to Revise (CUE) must be based on the 1986 facts in the Evidence of Record (EOR) or what we call your c-file. You cannot use newer CAVC or Federal Circuit Court precedence to win with either. Your whole legal argument must rest on established law in effect at the time of your decision.
Did they ignore the rules and regulations? Yes? Was it due to a misinterpretation of the earlier regulations which was subsequently corrected such as Walker v. Shinseki and the correct interpretation of 38 CFR §3.303(b) was finally interpreted the proper way? Yep. You lose. Just because you won in 1986 based on flawed law doesn’t mean VA can’t come back and “fix” it. They “fix” Vet’s ratings all the time based on CUE. Your only defense in these situations relies on a twenty year rating. Once you have that, VA cannot rescind it regardless of the current law unless you obtained it by fraud.
Did they forget to go get your medical records at Mt. Altoona Community Hospital when you filed in 86? You filled out and signed the Form 21-4142 authorizing them to obtain the records but a search of your c-file does not reveal them. Failure to assist. You get a do over, right? Nope. You lose. The duty to assist was taken off the table after Russell v. Derwinski. Read Caffrey v. Brown . Seems what we call a failure in the duty to assist has to be detected and objected to before it’s final. This falls into the category of ‘An incomplete record is not an incorrect record”.
You’re the lucky Vet and you have all the correct stuff to prove CUE and it gets down to the last test. But for the error, had it not been made, would there have manifestly been a major, different outcome? This is the Claymore mine most Vets hit the wire on. Unless it cannot even be proven otherwise that a different outcome would positively have (not might have, could have, possibly, mighty sure or My Uncle Clem won on that) ensued and you would have prevailed, you lose. The outcome must be undebatable. You have to have the photo finish picture to prove it, too.
A classic example of what isn’t CUE is you win a claim and they gave you 20%. You come back five years later and ask for an increase and they give you 60%. You say you should have gotten that at the beginning. Tough luck. You lose. You had an opportunity to pitch a bitch back then but hey-you settled for it. No Indian giver stuff now, hoss.
Imagine a Chutes and Ladders game where all the chutes head to the basement and denial. All the rungs of the ladders are broken or missing, too. And the spinner’s loaded. Welcome to CUE jurisprudence.
To prove CUE, you have to have an indisputable fact, buttressed by law current at the time. The indisputable fact must be so overwhelmingly obvious that it would seem almost impossible to not see it. This may be why it’s so hard to win given the relative density of VA’s raters.
VA is extremely loathe to air their dirty laundry. When they make a mistake of epic proportions like CUE, absent any back pressure, don’t expect them to be self-starters and motivated to correct it.
I just finished what may be my final appeal to VA to correct a major error. To make a long story very short, I had a C&P exam July 18th, 2008. The doctor worked for QTC and was a production line type. He reviewed my skin for Porphyria Cutanea Tarda damage, both current and from the past, annotated I got regular phlebotomies once a month to control it and stated (incorrectly) that more than 6 square inches of exposed skin was not involved. However, in the diagnosis and effects on living, he said I was totally disabled. VA proceeded to award me 10% for phlebotomies. When I filed a NOD for DRO review, they upped it to 40% for the phlebotomies but took back the 10%.
Here’s the C&P exam. Click on it to magnify for reading.
At first, I only perceived the 10% takeback as the CUE. After rereading the C&P exam, it was clear that I should have been awarded a full 100% from the get go. I had fallen into VA’s trap. They proceeded to make it a strawman argument over the recission of the 10%. The very last thing they wanted to relitigate was 100% versus 40%, or even 10%. I suspect they never really looked at page two of the C&P exam where the real rating language was. Instead they “top sheeted” it and spotted the phlebotomies and the skin language.
THE PRESUMPTION OF STUPIDITY
Therefore we are back in court as it were. Being pro se, Veterans are accorded the Presumption of Stupidity and allowed to bumble around quite a bit more than if we had legal minders. This is why I can go back and change the particulars of my CUE insinuation. Yes. It’s still CUE but it occurred October 1, 2008, not March 29, 2010. If you were represented by an attorney, VA would forbid this puddle- jumping from theory to theory. Fortunately for us, many chuckleheads have done what I’m doing as it finally dawns on us that VA screws everything up from the get go. I filed my Motion to Revise based on what I perceived as error. After more investigation, I unraveled it and corrected, or fine-tuned my argument in my NOD. If I find other compelling legal epiphanies on appeal at the BVA, I am entitled to present them as well up until they make their decision. This bugs them no end, I assure you. Pro se Vets are a pill. Fortunately for us, even if we are represented by a mentally challenged service officer from a major VSO, the Courts still view them as legalzoom.com-i.e. a poor substitute for a real attorney with a Juris Doctor after his name.
First, the October 10, 2011 filing which they lost. I refiled it again on August 12th, 2012. This is why you always use the green card on the major filings.
Then the denial of the Motion to Revise. I expected to lose. 85% of us do so on the first trip out. Almost 100% do on CUE filings. No anomalies here:
Then read the enclosed NOD which rebuts their bait and switch refusal to recognize CUE in this claim. Use VA’s laws against them. If they hang you with a regulation, use it to hang them right back with. The Presumption of Regularity is going to be one of our most potent tools in the future in this respect. Every time you turn around, VA is trying to extend this philosophy into decisions. ‘VA examiner is presumed to know his head from his ass, therefore…’ ‘The IME/IMO was probative and the doctor was presumed to be knowledgeable about HCV even though he was a podiatrist…’ Hey, you guys know the drill.
Redacted NOD CUE PCT 4-22-14 pdf
The important thing to keep in perspective is that VA is going to purposefully pretend they were born yesterday (at night) and are clueless. There will be a brief summary of the evidence and then a hard-charging denial that knocks all the underpinnings out of the argument. Unfortunately it’s often all wasted effort on the wrong legal standard or precept. When they are finally brought to bear on the correct facts, the argument becomes much more amenable to arbitration. I have known them to continue to evade the real premise which is why you want to iterate it over and over to the point of redundancy and painful boredom. LawBob Squarepants taught me that one.
Proving CUE based on a nebulous theory that is built on a lot of “could haves” and “it seemed to me at the time that” will never prevail. When you allege CUE, it’s akin to calling someone a child molester. You had better have the evidence if you want to be believed. Here, the evidence has to be part of the EOR and subject to only one logical explanation. If you need to do a PowerPoint Presentation, chances are your Motion isn’t going get airborne. Read Fugo v. Brown to get a better idea of the legal requirements.
CUE is initially a two- pronged fork where either one of the elements is enough to prevail. Having passed that test, the “manifestly change the outcome” is the third and final pass/fail. Far too many of us make our cases and then fall flat like a souffle when it comes time to prove the outcome would be different. That is why you have to lay the foundation for it back in Phase one of the CUE elements.
Never proceed into a CUE by dividing the elements up into pieces. This legal action requires lego-like precision. Each part must fit together like it grew there. The ankle bone’s connected to the … knee bone and the knee bone’s connected to the …. thigh bone. When all is said and connected, it’s like a chain link fence perfectly woven together. Each fact is indisputable. Each decision they made is legally indefensible because the preliminary precept was faulty. Identify that first mistake that set all the other dominoes in motion and you have the winning ticket that manifestly changes the outcome.
Old decisions have many errors. VA and especially the BVA, felt they were a law unto themselves before the Veterans Justice Reform Act (VJRA) was instituted by Congress in 1988. Unfortunately, they continued in that vein for years and years. The Court has spent an inordinate amount of time curbing their errant tendencies. To say they are wiser and don’t make mistakes now is hogwash. They are an insurance company. They deny. Legally or any other way- but they deny. This we know.
CUE is just one area where VA feels Veterans don’t belong. It’s messy and time consuming. It opens old defective practices and decision-making that reveals unmitigated bias and indifference to the Vet’s plight. It shows VA for their true colors- colors they would much rather keep out of sight. The brouhaha at the Phoenix VAMC will just be the tip of the iceberg of VA misfeasance, too. You can expect that to metastasize to other VAMCs soon. It’s systemic and not unique to Phoenix. A trick that good would be shared with other VAMCs. You can bet on it.
Hopefully this helps some of you on your decision-making regarding CUE. It is definitely not for FNGs to the claims world. It is something that must be held up to inspection for hours and days to get the perfect perspective and argument. Augment the error with regulations that either forbid or do not support the error. Illustrate all the other possible permutations such as two views of the evidence and discount them to remove it from the argument. Strip the old decision down to it’s bare bones to show why it would have been different if the correct facts were looked at or perhaps to show that they were not looked at in the correct legal light.
A CUE claim, correctly constructed, could be delivered and argued by Mojo, Homer Simpson’s trained chimp. It’s a complete, stand-alone argument that is indisputable. After reading it, there can be no discussion of merits or faults pro or con. Either it’s wrong or it isn’t. If you make the case airtight, you win. For some reason, few of us do. Either that or we all are just overly litigious and like to torture VA.
P.S.
The great news is the VA admitted defeat in 2016, I was awarded the 100% for Porphyria all the way back to 1994 with SMC at the “S” Rate. Cool beans. Win or Die.
asknod
kcraveiro
robinhoodesqvetsatty
Veterans Claims Help 
I had a 2012 Rating Decision made by the Regional Office in Winston-Salem, NC. I have since moved to Virginia and submitted a claim from here (VA) in 2018. I want to submit a CUE based on an error I found in the 2012 decision. Should I send the CUE letter and supporting evidence to the NC VA Regional Office (where the original decision was made) or the Virginia Regional VA Office where I currently live?
Thanks
Neither one, sir. You mail all correspondence to the EIC in Janesville Wisconsin-what we call Cheeseville.
Thanks for the info. I was diagnosed with hypertension and rated 10% in 2005. I was then diagnosed with Chronic Renal Disease (CRD) and rated at 0% in 2010. For years, I accepted that the VA knew what they were doing and didn’t question it. I read over the decision letter recently and the Title 38, Section 4.115a in effect at the time says that with a 10% hypertension rating, the rating of CRD should have been 30%.
I’ve put together a CUE claim that lays out the proposition above and includes the relevant VA Rating Decision Letters, DD214 and Title 38, Section 4.115a reference. With only this info, does this seem like a reasonable claim to put foward? And, thanks in advance if you are able to shed any light on this. I am seeking to educate myself and would love the opinion of someone who knows their stuff (You) before I pull the trigger. Thanks!
Just be sure to research to make sure the 2012 §4.115a VASRD ratings nomenclature was the same as what you are claiming is a CUE. Other than that, I’d say you have a chance.
It worked! Just received the CUE decision letter and the CRD was upgraded from 0 to 30%. Unfortunately, the 10% Hypertension went to 0 due to pyramiding, so I went from 79% to 84%, which did not get me over the hump to 90%, but I’m closer. So, I have more work to do. Thanks again for your sound advice.
Thanks for writing this – I’m just investigating whether or not to go down the CUE path. I’ve had SC for hypertension since 2004 (10%), then Left Ventricle Hypertrophy was discovered in 2016. My private doc informed this was due to long standing HBP, so I filed a secondary claim in May 2016. The echo showed LVH (which should be rated at 30%) and the examiner noted the LVH but stated “veteran does not have heart disease, veteran has an enlarged heart”. This was also written on my denial letter from the adjudicator. After 2 years I got mad one morning and reopened the claim – They finally correctly connected and rated it @30%….but it’s from my reopened date…No new evidence, they simply corrected what should have been done in 2016. what do you think – would the fact the the examiner made a patently false statement that a veteran with HBP and LVH “does not have a heart disease” and the fact that they noted the LVH on the C&P but didn’t apply the regs correctly be a CUE? It would be the difference of about 2.5 years on the effective date – so substantial. The only difference on the reopened claim was a note from my primary care doc that stated LVH is due to longstanding HBP. I did not get a medical opinion the first time….i guess that’s what the C&P was supposed to do?
Thanks so much
Dave
You’re arguing about evidence. Remember, two different opinions about how the evidence was weighed or decided can never amount to CUE. You also can’t use a new diagnosis as evidence in a CUE.
Ok, it doesn’t sound as though a CUE was committed. it just really bothers me that a medical professional (examiner) can see that I’ve had HBP for 15 years and LVH confirmed via echo cardiogram, then state “veteran does not have heart disease”. That seemed to play a large part of the final decision. Since those two conditions are under the VA’s list of “diseases of the heart” that would seem to be a CUE to me.
Thanks for the reply and info!
But who was it who said “Veteran does not have heart disease.”? If it was a VA doctor, and all the Evidence of Record (EOR) points to one, and only one, conclusion of medicine, then it is error. The test will always be “When reasonable minds can concur an error has been committed”. I’m going to take a flying fk at a rolling donut and say the doctor who said you did NOT have heart disease was employed by the VA. Who on earth did you think you were working with? Honest folks? CUE is hardcore litigation. You’re fixing to call VA a liar and a cheat.
Yep, it was the VA examiner during my C&P (she was an NP I believe). She didn’t just say it…she actually wrote those words out for all to see. THEN, the last sentence on my decision letter states “The VA examiner states that you do not have heart disease”. So they took into account her false statement when making the decision. I won’t even go into the behavior of the NP during my exam. The fact that I reopened this claim 2 years later with just a 1 sentence opinion from my primary care doc (LVH caused via long standing HBP is sort of common knowledge) then the VA approved for 30% quickly, tells me the first go, someone messed up.
I guess I feel like if reasonable folks saw my long standing service connected HBP, then an echo cardiogram that shows LVH and then looks at her report that notes the LVH, but follows up with “veteran does not have heart disease” that would be ruled a CUE. The outcome certainly would have been different had she not falsely stated that.
Thanks
Also to those also fighting with me and many others. Always seek help and always triple check your work and have some one not emotionally connected to your case that has the knowledge and experience to check your work.
Most importantly as with everything military…no one is going to do more for you than you will….DO YOUR OWN RESEARCH!!!
All of the laws, procedures and guidelines are accessible by book and internet….AND INTERNET. RESEARCH RESEARCH RESEARCH.
The answers are all there, I pray for you all success.
Godspeed.
Thank you for this, one i appreciate the humor because i lost sleep and shed tears researching and putting together my CUE claim. Currently waiting my award. Also you help me confirm wether or not to attack attack attack or hang back after submitting new and material evidence along with disecting the initial denial years ago. Pray that my diligence paid off and my suffering to Comp and Pen days are over for me. Thank you again.
I hate CUE. I hate fighting it and litigating it now that I am accredited. It is the most difficult wall to scale. But I’m a chump. I keep taking these cases because justice must be attained.
Good Afternoon All. I followed guidance given here on re-opening my OSA claim vice submitting a CUE. Happily I can state that I was just notified yesterday via mail that my OSA claim was secondarily service connected to my service connected GERD. The approved the effective date as the date of this reopening request 29 Dec 2017 and not the date of my original claim in 2008. My GERD was service connected at that time but the VA did not connect the two then. My NEXUS letter and various medical articles (dated prior to my original claim) suggested that that was one of the causal sources or atleast aggravated it. There are also VA Citations that the BVA granted OSA in relationship to GERD prior to my original claim. The original guidance here was to reopen and if approved do a NOD on the effective date. Is that still the best approach?
Yes sir it is. VA will never reach a decision on the earlier effective date before you win. It’s axiomatic you cannot adjudicate entitlement to an earlier date absent the entitlement in the first instance.
File a NOD and show the medical diagnosis supported an earlier date if you have them. VA law is emphatic. Entitlement arises at the earliest date it can be ascertained you qualify. VA would like to look only at a diagnosis in 2018 and ignore the same in an earlier adjudication (2008). To be sure, you are not arguing a CUE in the instant claim but one in an earlier claim. I like to file those separately on a 526b nowadays and then conjoin the two for appeal later to get them legitimately before a Judge at the BVA simultaneously. You can cite to the Stand Operating Procedures of the Segmented Lanes Model.
“An Appeals coach is permitted to adjudicate inextricably intertwined claims in the first instance during an appeal in spite of their not being developed to their optimum and properly appealed. Please refer to the M21-1 Manual III. i. 1.3a for guidance. See also Harris v. Derwinski, 1 Vet.App. 180 (1991). This provision comprehends conserving scarce judicial resources so as to better allocate resources to other deserving Veterans.”
. Otherwise, they will say you never filed a CUE or intimated you wanted an earlier effective date based on error. Always CYA. Have a plan B.
Thanks for the response. Just so I fully understand, I will file the NOD for the effective date and also file a CUE simultaneously against the original 2008 claim?
Roger that sir. File using a VA Form 21-526b.
Thank you. I do apologize for my brains lack of comprehension. I reviewed the VA Form 21-526b. Do I select “Increase in the rating” and then in the notes next to it list change effective date to the 2008 claim date? I assume I will reference the Stand Operating Procedures of the Segmented Lanes Model in the actual NOD statement.
R/
I would leave the “increase blank or write N/A.You can always attach the standard form 8.5”x11” White with an explanation of what you seek and why. Just remember not to ask for benefit of the doubt or a reexamination of the evidence. The idea of using the 526b associates it with the current claim stream you have going. It will also give the rater heartburn.
Thanks for the help. In my actual NOD write-up (not submitted yet) I added the VBA Citation Nr 0721743 where the board approved OSA secondary to Sinusitis and GERD based on existing published medical articles provided by the NEXUS doctor. I actually included those same articles with the current claim that just got approved. The BVA Citation was dated back in 2007 several months before i submitted my claim in Jan 2008.
Good Evening. I do have a question about the NOD. It asks what percentage I feel each item should be rated at? How is the best way to handle that? I have a copy of the rating DC table but it is somewhat confusing. Secondly I figure I should get an additional IMO for my knees and lower back. Is a certified physical therapist acceptable for this or should I try and get an Ortho Surgeon for my knees and a Neurosurgeon for my back?
Good Afternoon. You mentioned I should request an exam by a specialist (Orthopedic) for my knees and lower back by the VA. I assume that request should be in the NOD. Also should I get a new IME/IMO on those items once I get a copy of the C & P exam results or wait for the VA to respond on my NOD?
Call me.
Up to this point, I have done everything myself. My initial claim was 1999. I was involved in a MVA on the autobahn in Germany. Another SM was driving the military vehicle when it crashed. It was a rollover several times. To the point, I filed my back injury in 1999 (denied not service connected). I did not file an appeal. I reopened the claim again and they kept denying “not service connected.” It wasn’t until 2016 they approved me for 20% for my back injury. Finally someone said “get your claim file and go thru it.” Which I did (as we are not privy to what the VA examiner decides). In the file I found the VA examiners report indicating “It is as likely as not that the accident during the military service caused the current back condition.” I was like what!! And that was the VA examiner dated April 12, 1999. Obviously someone did not read that report or just ignored it. but it clearly states “service connected.” Yes, I am going to file a CUE…win or lose! As many of you, I have stacks of treatment records for my back. The outcome in1999 would have been much different for me. I was denied VA care for a service connected injury for 16 years. Which my primary insurance had to pay for. my back braces, TENS units, meds, not to mention when my back is blown out and I cant walk at all etc. my insurance ended up paying for it. I will try and keep you all posted.
It’s too bad you had to go through this. Many do. That’s a primary reason we began this website. I feel we have some of the best CUE knowledge assembled here as any Vet’s site around. Feel free to ask questions. CUE, under the best of circumstances, is the hardest VA claim to win.
I am up for the challenge. I only wish I knew then what I know now. I’ve been researching CUE when I came about this site. It will be very helpful. Thank you.
I was denied service connection for Left Ventricular Hypertrophy after my pre-discharge evaluation in 2002. Prior to that I had received 2 EKGs 1995 and 1999 at different medical clinics showing hypertrophy and 1 xray 1989 showing dilation of my interior vena cava in at WBAMC. On the day of my predischarge evaluation my EKG showed hypertrophy and left atrial enlargement. This information I am writing comes from my records and noted by the PC-C in 2002. In 2002 to receive 30% disability was you had to have at least 1 EKG showing hypertrophy or xray showing dilation. I received nothing not even service connection. All this information was in my records at the time of evaluation of my evaluation. Is this a CUE?
Have you approached a VA attorney over this? I see a lot of error on VA’s part if the facts are borne out by your claims. Remember, choice of DC is not CUE. If you do not dispute it, it becomes final. Remember that entitlement to benefits arises when you file an original or reopened claim and no earlier. To reach back, you have to pass all those tests I mention above. Get your claims file and look at the Confirmed ratings decision issued at the same time as any narrative decision (the one with the seal on the first page). VA doesn’t send that to you. It has the exact DC they used to rate with. If it was by analogy, you might have a CUE. If you were issued a 0% rating and didn’t appeal it, what did VA do wrong? They cheaped out on you and you didn’t bitch- until now. As for the testicle thing, if they took both, you’d get SMC K for loss of use of a creative organ. That would be CUE not to award it. I’d have to do a lot of reading on testicle cases to tell you whether you should get 30% or not. Sorry.
No lawyer, but I claim and appeal 9 months ago no answer as of yet. still waiting,
but thanks for you answers
It was discovered by the VA examiner during my pre-discharge evaluation that I had and still do have a ventral hernia. It was captured using a 7339 diagnostic code which is for post operative and I was given 0%, however I never received treatment for this condition or any treatment in that area, the condition is pre-operative. Diagnostic code 5326 should have been used which is defined as hernia that has not been or cannot be operated on will received 10%. Is this a CUE?
I received a right testicle removal in May 89 due to cancer and a elective vasectomy on my left in September 89 but was rated at 0%. All this was noted in my records. Based on the law at that time I should have received 30%. Is this a CUE?
I have a CUE question on my sleep apnea claim. I was denied in 2008. (no appeal) I retired in 2000, I was rated 0% AND 10% FOR rhinitis and GERD respectively. The denial stated symptomology in service was isolated and not probative. eBenefits shows where the rater originally looked for indications of asbestos exposure and then the fatigue, headaches, etc. (symptoms). I have an IMO from a doctor who deals with VA claims stating that in 2008 GERD and Rhinitis were known to have causative links to sleep apnea and was stated as such in medical literature of the time. The VA also had previous appeal decisions in favor of the vets tying those ailments to sleep apnea. The doctor say it is CUE because the proof of my chronic ailments were in my record and not applied and that the decision would have been different if those facts were applied. Is this a basis for a CUE?
No sir. You are asking the VA to reassess the evidence of record. That is an argument over how the original evidence of record was decided. If the rater’s logic was “plausible”, then any decision had a foundation of legitimacy. A CUE would be that there was evidence of record that was never included in the decision or only recently found and associated with the file. That might be a case for §3.156(c) litigation rather than CUE.
Thanks for th response. Just to clarify the doctor stated it was CUE because they did not apply the fact I had those chronic conditions in the decision. That was his only basis. The other details I added was back ground and not in his letter.
A doctor is not a lawyer. Far too often I have them attempt to intrude into the legal side of things and opine. Now, if the word “chronic” was used in the diagnosis, that would be another matter entirely. VA raters use OCR to excavate certain key words in a .pdf. Using the wrong search word can easily produce a CUE as can a document that has not been “prepped” with OCR. Always remember,too, that OCR cannot “read” handwriting. If we could teach them that, it would eliminate a buttload of CUE.
Thanks again. I was diagnosed with Chronic Sinusitis on active service but the VA denied service connection on my original claims right after I retired and many years before my OSA claim in 2008. My denial for that stated “service medical records did not show any definitive diagnosis of chronic sinusitis nor is it shown on the VA exam.” It was actually listed and diagnosed 3 specific times in service in my SMRs including discharge physical) so I am re-submitting that claim. So not sure what you are referring to in regards the word “chronic” and a possible OSA CUE.
Ah, you keep divulging more info that changes the picture, sir. If you have no residuals of a disease or injury present at a c&p, then the VA will declare it as not chronic. The accepted medical definition of “chronic” is something that never resolves-period. You could have had numerous instances of sinusitis in service but VA would characterize them as “acute and resolved”. If you have no hx of intercurrent txment for sinusitis from retirement to the c&p exam, then you do not have a chronic condition in VA’s eyes. Each claim has unique facets that can only be examined minutely for error. There is no setpiece rule for all of us. Sometimes I analyze a claims file for days or weeks before I discern a true CUE. Try this one on for size https://asknod.org/2014/05/02/cue-the-quintessential-elements/
I appreciate your comments especially since I have only provided bits and pieces. My chronic sinusitis was and is continual, not every day but every week. I self medicate with pseudophed and have since when I was in service. It is the only thing that works for the sinus headaches, pain and ears closing off. Got tired of going to sick bay and being handed a cold pack. I explained that to the doc at the C&P and he blew me off. On the day of the exam I had no pain and minimal pressure. My VSO stated I should accept it and not appeal since it was the doctor’s word against mine. I made the mistake of accepting my VSO’s recommendation. I’ve had xrays since then and doctor diagnosis stating I have chronic sinusitis with cysts on both sides. So I may try to go the CUE route on the chronic Sinusitis or just request to reopen with the new data and the fact that the RO missed the “definitive” diagnosis in my SMRs. All of my details and possible claims are under review by my current VSO (Virginia Dept of Veterans Services). There legal folks are looking over what I thought might qualify as CUE requests. Time will tell. I really appreciate your responses and your website. It is a wealth of knowledge and help to me and other vets trying to navigate the VA claims world.
Just remember your legal team works for the VA, not you. CUE is a booger. I just won one with 9 CUEs but I do it for a living-and have been for 30 years.
Roger that! 🙂 I contacted several lawyers who specialize in VA claims but they all said they only work appeals. I did shoot you an email on it and asked but figured you were swamped. At present the Virginia DVS was the only folks available. I will take their advice and opinions with a grain of salt. I’m reading everything I can on CUE claims I find on-line, any actual case citations that could support my claim, and the actual CFR. It definitely makes your head swim. My biggest obstacle at present is getting a look and eventual copy of my C-File. I was quoted sometime between June and August so only a few more months to wait. I may go to the DC VA office and request to look at it there sooner than later since DVS say they can’t let me look at it. Still can’t figure that one out.
If it has taken more than 6 months so far, I have a gal you can contact there who will expedite it pronto.
Thanks but I actually just started with them about 2 weeks ago. But if it bogs down I will definitely reach out to you.
The wonderful postscript to this is that I have won everything. The Seattle RO refused to consider it CUE and gave it all to me under the auspices of 3.156(b) in that the old 1994 claim was still pending all these years. Since they had erroneously assigned the 10% rating for skin, they were forced to restore it and then increased it to 30%. Porphyria was finally rated on appeal to the BVA as 100% -analogous to Dialysis.Thus you can see the use of 38 CFR 4.20 for analogous ratings that have nothing to do with the body part affected but which are considered “similar ” in ratings context. Always remember CUE is a concept of error that has no civilian counterpart or case law. Much of CUE law really has yet to be written because so much of it occurred prior to 1988 and the passage of the VJRA.
On July 22,1982 I was taken into Emergency Surgery at Navy Regional Medical Center (NRMC) Jacksonville, Fl. to have my appendix (the Ventral Hernia) removed. It was first discovered by my ship’s doctor and then by the physician’s at NRMC Jacksonville, Fl. that I was having an acute appendicitis. When the physician’s finally had me on the “operating table” that day they discovered that my appendix was normal but instead it was my “Small Intestines” had holes (perforations) in one section and this was causing my illness. The doctors then performed what was termed a “Small Bowel Resection“.
Within 3 months of a recovery period, I was discharged from the naval service in October 1982 with a Medical Discharge after having served 12 consecutive years on active duty. The Navy diagnosed me with having Crohn’s Disease. The Navy also rated me as 30% disabled based on VA codes of 7399-7323. I do not believe VA code 7399 currently exists today as I have not seen it listed in any of the codes I have seen to date. These two(2) ratings by the Navy occurred prior to applying to the VA for any disability rating.
Upon applying to the VA for a rating , in March 1983 I was given a rating of 10% by the VA. The VARO Chicago, Il. has been sending me my annual $2 a year pay raise letter saying that I had a “Resection Of My Large Intestine”. And of course, I have received 32 of these letters over those years.
Just trying to keep it as simple as possible …. Since 1982 I have received a 10% rating by the VA as the below information appears on my “pay raise letter” … word for word as follows each of those 32 years:
Service connection has been established for:
Resection Of Large Intestine 10 %
Ventral Hernia 0 %
Combined 10 %
Last year I applied for an increase in my disability rating in April 2013 and I was hoping to get bumped up to 20%. I had recently got called into the North Chicago VA Hospital on March 18, 2014 to take a Special Medical Exam (SME). By the following Monday, March 24th my status on eBenefits showed up as “Completed”. I was shocked … as I thought this would still take several months to complete. I am a “newbie” on eBenefits and this website … so please be gentle with me …. but I did some research on the ebenefits website and found my VA documents which showed that my rating had been bumped up to 30% and that I would receive “Back Pay” dating back to December 1, 2013. On the following Monday, March 31st the “Back Pay” showed up in my savings account. Again I was shocked. To this day, I have not seen any paperwork in the mail as of this writing (April 4th) regarding my claim results. Its like the old saying “the check is in the mail”.
Anyway ……. now I am in “shock & awe”. While waiting to hear back from the VA on there decision, I was reviewing my records and information online. I have just recently discovered that I may possibly have a CUE (Clear and Unmistakable Error) in my initial VA decision that dates all the way back to 1982 (Don’t even ask why it took me so long to figure this one out … VSO Rep has already asked me that question and I have asked myself that question several times over already). This could possibly mean that if it is a valid “CUE” then the VA will have to “Back Pay” me all the way back to 1982 (32years). NOW that will be some kind of “Back Pay” if my CUE is correct. CUE…. What is a CUE? … I was just asking myself that same question just two days ago. And it took me awhile to figure it out. But just to keep it short and sweet and please feel free to correct me if I am wrong. When you first get your disability rating decision back from the VA …. you have 365 days to “APPEAL” that VA rating decision or it automatically becomes a “FINAL” decision. The only way that you can then request an “APPEAL” after that one year is to have a “CUE”. A CUE means that the VA made a VA disability decision that was “Clearly and Unmistakably an ERROR” and that error has to be factual or by a law an error.
Anyway, I have the “Operative Report” and the “Tissue Examination” in my hand from my 1982 surgery that the attending physician performed that says “clearly” he only performed a “Small Bowel Resection“…. And as we all know the “Large Intestine” is synonymous with the name ”Colon” and the “Small Intestine” is synonymous with the name “Small Intestine (no other 2nd name)”..….. My COLON was NOT resected on that day and never has been to date, but the annual pay raise letter says Resection Of Large Intestine 10 % . Nowhere on the Operative Report does it even mention that my colon was touched except to report that it was observed as being “normal“.
The VSO office in North Chicago’ Il. was informed of my possible CUE and they requested that I get a copy of the VA decision from back in 1982 from the VARO in Chicago, Il. to see what they say was the Final decision in my case. Right now as we speak, I am thinking that they made a “mistake” because they have been sending me this annual letter for the past 32 years with my $2 annual pay raise that says I had a “Resection Of My Large Intestine ”. I don’t know where they would be getting this information from unless the computer was pulling this information directly from my record. And if that is the case in fact then this is quite obviously a “CUE” … since I never had a Resection Of My Large Intestine EVER.
If somehow the VA can finagle that this is NOT a CUE…. Then I would have to press forward that I would have to file a new application for disability benefits based on the fact that I had a “Resection Of My Small Intestine” back in 1982 since I have written proof with my Operative Report. If it is NOT a CUE then I would have never received a disability rating for that surgery. I should have actually been rated for “Crohn’s Disease” as originally rated by the Navy back in 1982 as that was the Navy’s reason that I was Medically Discharged from the service for having been diagnosed with Crohn’s Disease. They said I was not fit for duty because I could possibly have a flair-up while out-at-sea as I was in a sea going rate.
I have been researching the “web” to see if I can find out what the disability percentages were back in 1982 for having had a “Small Bowel Resection” but I have not been able to locate any site that has that information. Since you must be able to prove that there “mistake” would change the outcome of there 1982 decision I can only say that for 2014 a “Small Bowl Resection” pays out at 20% as the lowest pay out. If anyone knows where I can locate this information that has the rates back in 1982 / 1983 I would really appreciate it if you could let me know on this site. At the 10% rating over 32 years the payout has been about $36,000 so an additional 10% back pay would be about the same amount . A fair chunk of change to say the least.
I am not even totally sure what information the VARO in Chicago based there 1982 decision on since that was 32 years ago. I have written the VARO Chicago over a month ago requesting they send me a copy of there 1982 VA decision on my case , but I am not sure exactly what they will send me. Not trying to count my chicken’s before they hatch …. But this just looks and smells too obvious …. Might be a good reason for a CUE.
I am currently trying to gather up as much information on my possible CUE as I can.
Any thoughts on my chances of a CUE? Any comments will be greatly appreciated. Thanks!
PS: Great article “asknod”. You inspire me to put this together to share with others and hopefully everyone that contributes something like you have done will help us all in the long run. Thanks again “asknod” !!
Sorry I didn’t see this one earlier. It brings up some important points. The short answer is you do not have CUE. Surprise, surprise, surprise. Shazamm. You were rated under an analogous rating (38 CFR 4.20) because Crohn’s disease was unknown then. The diagnostic codes are constantly evolving. VA can argue that they rated you as nearly as possible under something similar and they would be correct. As for the correct percentage, you had the ability to file a NOD to contest it. You didn’t and that, in essence, was an admission that you were copacetic with the amount. As I said, this is a difficult game to play. The rules are stacked against us worse than any can imagine.
The good news is that when I filed my Writ at the Court on January 1, 2015, VA was forced to give me back the illegal clawback of 10% for Porphyria. They also had to give me Special Monthly Compensation “S” all the way back to 1994.
Asknod, Thank you for taking the time to read my long disortation as to what happened and why I came up with CUE. I am just having a hard time believing that the VA raters did not have a legitimate code for the my stomach (small intestines) back in 1982. And that they would just go with the generic (38 CFR 4.20) analogy instead. If they had a code for the small intestine back then they should have used it instead as that was where my surgery was performed …. not on the large intestine… I could not locate the codes that go back to 1982. But I would be willing to wager the 10% that they gave me that there was a code for the small intestine back then. Probably the same code number they are using now … 7328. What should really be the kicker here is what the Operating Physician stated in his Operative Report was a statement that said that my colon a.k.a large intestine felt and appeared to be grossly normal. So what I hear you saying is that there analogy was they could only find a code for the large intestine that the Operating Physician stated was grossly normal. Isn’t it illegal for the VA to payout on something that was considered grossly normal. As for the NOD you mentioned below, I was completely unaware of the processes involved at that time with compensation. Plus, there was one other thing missing back in 1982 besides the Crohn’s Disease from the code listings ….. COMPUTERS. We did not have easy access to the information that we have today. I do not think the words ‘personal computer’ even existed back then as well. Not to mention that my daughter was not even 2 month’s old at the time I had surgery and my son had just turned 4 …. oh and my wife of course. So all of my energies at that time was providing for my family as I was just given the medical boot out of the service on just a very short notice. I needed to find a job right away so there was not very much time for me administively speaking and then again …. no COMPUTERS. Can you even imagine how long it would have taken to get information from the VARO in Chicago back in those days? It still takes forever now and guess what …. they have COMPUTERS now and they are still just as slow. Here’s a funny for ya. On January 6, 2015 I wrote a letter to the VARO in Chicago and I was totally shocked when I received a letter back from them on January 14, 2015. The only problem with the letter I received was that it was addesssing another letter that I had requested information on from back in March 2014. With that in mind …. I have never learned to get your hopes up again with the VA. Sorry about the rambling on again. All you can do is file and just sit back and relax. Thanks again Asknod… you are doing a great job and we all really appreciate all your hard work. Take care. Jim Malovrh
Hope You Have A Great Day Today!!!
Date: Tue, 14 Jul 2015 15:28:56 +0000 To: cats_meow01@hotmail.com
SURELY theres more vamcs cooking the books. reminds me of when I worked at sears and was counseled on my production. I was told, look sir, tech Smith is doing 7 service calls a day to your one, do u know how hes doing that> well he is working thru his lunch hour. were not telling You to do that, but just so you know, thats how he got his raise. TADAA
Most excellent article Sir. Waiting on a hearing date on both my appeals, got a phone call from DAV on good friday. Seems they could not figure out what I wanted. Got a call from a rater on monday who wanted to dismiss my 2nd appeal because ( I was mistaken). No luck for him there. Your site is a gold mine of information for us. Thank you again.
I recently lost a CUE claim at the Court of Vet Appeals. I had the best lawyer in the business, Ken Carpenter, and I still lost. I lost on the final leg of the CUE argument because VA said my evidence was not “undebatable” What happened to “reasonable minds” and all that crap? I had a private clinical psychologist on my side, and the VA had some unnamed ward clerk on their side of the argument. I lost because the VA said my claim for a higher rating was “debatable” due to the fact that a ward clerk’s evidence makes a clinical psychologist’s opinion debatable.
Another problem I had was that my CUE occurred in 1973. Before 1990 the VA did not have to list, or even mention all the evidence in a claim. In 1973 the VA just excluded my doctor’s evidence, and relied completely on their evidence. Since the VA had no obligation to list my doctor’s evidence I cannot prove or disprove the VA considered it. The assumption is that they did consider it even though the BVA admitted that there was no evidence that my doctor’s evidence was ever considered even though it was part of the record. I think the basic lack of due process got my lawyer’s dander up, and he could not accept that the VA could get away with something like this. Well, after 7 years he was wrong. They got away with it.
Lawyers feel in their gut that evidence that is excluded from the record shows lack of due process. It does except in the VA system. Just in the time I filed my claim in 1972 and the time I got rated in 1973 the rules changed for how to rate my condition. This cost me a few years. I did win a CUE based on Bradley V Peake due to fact I had TDIU plus 60%. I requested SMC “S”. The VA admitted CUE and I got the award plus two years retro. This was just luck since I heard about it on Hadit.
See my reference to “Not exactly Chutes and Ladders”, John. VA CUE jurisprudence is a necessary evil in their eyes. There never was any Statute or regulation enacted to cover this eventuality. VA simply acknowledged they screwed up (a lot) and had to repair it sometimes. It has gradually evolved into what we see today- an even uglier mess with virtually impossible rules to overcome to see justice served. Do not expect any major rewrites soon unless it’s to do away with CUE entirely. I will be interested to see how they try to sweep me under the rug.
You won a cue claim based on Bradley v Peake, and received two years retro pay. My question is when was your original claim decided before or after Nov 2008. I have a claim pending based on CUE, and Bradley v Peake.. my original claim was decided in 1999, Bradley v peake was decided in 2008. I have read that CUE doesn’t apply to cased decided before Nov 2008, because different rules were in effect prior to 2008.
” VA and especially the BVA, felt they were a law unto themselves before the Veterans Justice Reform Act (VJRA) was instituted by Congress in 1988. Unfortunately, they continued in that vein for years and years.”.
Seems to me most folks in VR&E still feel the same in regards to ILP….. Riding mower – Nope.. Tractor – Nope. Greenhouse – Nope.
“Mr Dillion, Mr Dillion that outlaw says we can’t do that. Whata we gonna do? Well Chester…”
Right. “Well, Chester. At least they gave us the neatsy keen can grabber for the top shelf and a grab bar next to the toilet. I’m still working on a cordless phone just in case I fall down and I can’t get back up.”