Grave Procedural Error

[Guest Berta]

I can't find this topic-

I clicked on email from hadit to take me to a reply and then had numerous problems with my PC-dont know why-

I lost the topic-

Hayre V West - 188 F 3rd 1327 Fed Cir . Hayre was a claimant who had argued Grave Procedual Error in lieu of CUE-

-this case was overturned by the Fed Circuit Court in Cook V. Principi- and also Tetro V Principi

It is all at the old hadit -we had quite a discussion as I recall-

[Wings]

I may be mistaken, but as I read the ruling, grave or grevious procedural error can only be used in claims that are not final.

Say you have three specific items for which you are claiming disability for, two of the items were ruled on, but were mute on the third one. Somehow this slips your mind and a year goes by. You decide to reopen your claim, but when you review your records, you see that the VARO failed to adjudicate on the third item. This part of your claim remains open since the VARO failed to adjudicate on the third item their by making a grave procedural error.

I hope this makes since.

Jim S.

Jim, I believe you are absolutely correct!

[Guest Jim S.]

Thanks Wings, I did know that if you called this type of claim as CUE, the VARO being what they are, would probably hide the fact that the claim was actually still open and deny your claim for CUE, fully knowing it was an open claim.

It could even be denied at the BVA as CUE, The fact the claim was still open may be missed or ignored. It may well go all the way to COVA before the CUE is finally noted for what it should have been all along, a Claim that was still open. Then your back to square one, but the good new is, should you win the open claim your EED is when you first applied and the error occured.

Jim S.