Question:
I was just awarded 3/2020, a 50% rating for Migraine headaches that I have had since a head injury during my time in the Navy 1992 (in USN 1990-1994). I submitted a claim for Migraines in 1995 and received a rejection of my claim. There are clear diagnosis in my Naval Medical record from 1992-1994, with a few instances stating, "Classical Migraine" as my diagnosis. Although the Naval Neurologist came to this conclusion, I am not sure why my initial claim was denied in 1995. Do I have a CUE case since the diagnosis was clearly in my Military Medical record noted a 2-3 times. This is really the only condition have consistently received treatment from the VA over the years with the condition at times being quite debilitating. I feel this was a mistake or oversight by the VA who reviewed my initial claim in 1995. Is CUE possible?
Jim's Reply:
Is CUE possible? Probably not. When the claim was denied you had one year from that date to appeal. Once you are past that one year the claim and denial are considered to be permanently closed. You may then make a new claim by providing new and material evidence but you will have lost the earlier effective date since you didn't timely appeal the first denial.
To show a Clear and Unmistakable Error (CUE) is one of the more difficult tasks in the appeals arena and many veterans attorneys won't touch it unless it's so apparent that it falls into a no-brainer category.
You say, "I am not sure why my initial claim was denied in 1995" and that's an indicator that you aren't ready to consider a CUE claim since you not only have to prove what went wrong, you have to prove by specific law it's the fault of the VA. You're allowed to pursue any claim you wish but this isn't one that I'd recommend.