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Thinking of filing a CUE Claim

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pacmanx1

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The crazy one here, For those of you thinking on filing a CUE Claim or requesting VA to CUE themselves, as I always say that you better have a good grip on the CUE regulations as Ms. Berta has or you better hirer an experienced veteran law attorney.  It would help your claim if you could simply file a NOD if you were recently rated. I myself have lost CUE Claims and trying to help veterans they have lost CUE Claims but I myself and in helping veterans have won NOD claims that covered the same time period as the denied CUE Claims. I think because Cue Claims are more stringent, more strict,  more specific in VA law and the NOD  evidence clearly showed that VA should have granted earlier claims. Yes, I know that CUE Claims can be won but they are very rare and very time consuming.

20.1403  Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. (My two cents added VA does not have any reasonable minds) and this will trip up a lot of claims.

(b) Record to be reviewed.

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error.

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.  (Authority: 38 U.S.C. 501(a), 7111)

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Thanks for posting this Pete.And you are sure correct that "reasonable minds" at VA is Not to be counted on.

Personally I think anyone attempting CUE should buy a copy of the VBM by NVLSP because they have considerable information on what "legal" Errors can be found in VA decisions.

They could even purchase an older used version at amazon of the VBM because I dont think the info on CUE has changed in the newest 2015 edition. .but I will look over that section in the 2015 VBM to see if maybe something new appears there and then post it here.

The odd thing about my SMC,IHD and CVA CUEs were that they were found in a 1998 decision

(award for DIC under 1151) that my vet rep at the time told me not to file a NOD on.

He said 1151s were different ,so no need to file a NOD or a CUE.

I was Delighted to contact this POA's lawyer from the state when I won those CUEs many years later and told him I should have been advised to file a NOD as soon as I brought the decision into the rep's office and there was obviously legal error on the rating sheet.

By then however the rep was long gone from claims representation.He had been demoted.

I heard him give poor advice once at the VAMC to a Vietnam vet who was getting SSDI solely for PTSD.The vet asked him if that would help his TDIU claim if VA knew of the SSDI award.

The rep said that is very interesting but I don't think it will help at all.

I caught up with the vet in the VAMC parking lot, as I had just been awarded accrued benefits (prior to the DIC award) and my husband's SSDI award solely for PTSD was based entirely on his VA med recs ,and the VA even gave the accrued benefit  the EED that SSA had used,which was more favorable than the date my husband had filed the VA claim.

He had 30% SC for PTSD in his lifetime, applied for a higher rating, sent in a TDIU form they never addressed and then posthumously he was granted 100% P & T due to SC PTSD with the SSDI EED.

I posted here how that favorable EED can work sometimes.....will try to find the regs for it and post it here again.

The vet said he would send info on the SSDI award to the VA right away.

 

 

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