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Clear And Unmistakable Error


mobie16r
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Question

I hope this information is helpful

(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.

(:P 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 (VA) 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.

© 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.

mobie16r

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

OK, now my one claim was denied as it stated on my disc summary: had normal exam on discharge, back injury referred to one time problem jul69 no prob since well there is no such injury occurring this date or months away from this date so them claiming to use this as my reason for denial should be a cue as the SMR have all the correct dates,treatments,therapies,etc however they use the discharge summary record for their documention to deny.

Wrong date should mean not to deny, Right?

Wrong date does not have any injuries or treatments to go with it.

Correct date has al verification.

What do you think?

I have to wait 2 yrs for BVA to review then make their decision, then I can cue, Right? :P

I hope this information is helpful

(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.

(:lol: 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 (VA) 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.

© 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.

mobie16r

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

OK, now my one claim was denied as it stated on my disc summary: had normal exam on discharge, back injury referred to one time problem jul69 no prob since well there is no such injury occurring this date or months away from this date so them claiming to use this as my reason for denial should be a cue as the SMR have all the correct dates,treatments,therapies,etc however they use the discharge summary record for their documention to deny.

Wrong date should mean not to deny, Right?

Wrong date does not have any injuries or treatments to go with it.

Correct date has all verification.

What do you think?

I have to wait 2 yrs for BVA to review then make their decision, then I can cue, Right? :P

I hope this information is helpful

(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.

(:lol: 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 (VA) 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.

© 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.

mobie16r

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How they weigh the evidence can not be for a CUE claim,

so I would not use that wording at all.

Hope this helps a vet.

jmho,

carlie

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halos2,

If your case is still open, don't even think about letting it become final just so you can claim CUE! CUE is the hardest way to go. There's nothing that CUE can resolve that can't be resolved easier via the traditional appeals process. On the other hand, there are many, many, things that can be resolved via the appeals process that CUE does not cover.

Bottom line - don't let a decision become final if you don't agree with it.

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  • HadIt.com Elder

Even the phrase "weighing the evidence" will probably get your CUE claim thrown out. That is wording that is deadly to a CUE. If you have a CUE the VA may have to reweigh the evidence, but you have to have the CUE first. I think a CUE is sort of like playing the lotto. If you have one it is because you had poor representation to being with which let a claim become final when it should have remained open to provide new evidence, or go to a higher level of appeal. JMO

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

OK, now my one claim was denied as it stated on my disc summary: had normal exam on discharge, back injury referred to one time problem jul69 no prob since well there is no such injury occurring this date or months away from this date so them claiming to use this as my reason for denial should be a cue as the SMR have all the correct dates,treatments,therapies,etc however they use the discharge summary record for their documention to deny.

Wrong date should mean not to deny, Right?

Wrong date does not have any injuries or treatments to go with it.

Correct date has all verification.

What do you think?

I have to wait 2 yrs for BVA to review then make their decision, then I can cue, Right? :rolleyes:

Was this issue/argument raised in the appeal?

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