Clear And Unmistakable Error

[mobie16r]

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

[Angela]

Halos2,

Just re-read your question. Once the BVA makes a decision, if you don't agree with it you appeal to the Court of Veterans Appeals (CAVC).

[Rockhound]

As stated below, you can not Cue a claim until the decision becomes final. You can however, If the case hasn't already been appealed to the BVA, ask the VARO for a DRO so that you can present your evidence in its correct form and with its correct dates.

If it has been appealed to the BVA, you may bring up the question of the evidence as having been miss quoted or stated, providing them with the correct evidence and dates.

If it is still at the VARO level, I would consult with a VSO/veterans service officer as to your avenues of appeal. However, keep in mind the apeals process and time deadlines for same to submit your appeals.

Good luck.

Rockhound Rider

[winger]

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.

( :) 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

Hi folks,

this is mt first post please bare with me.

I Was awarded PT&IU on 4/18/02 after I applied for an increase on a bilateral shoulder condition , which I was medically discharged from USMC on2/76 TDRL first then VA picked it up an gave me 50% and have held that since 30yrs+.

The increase I applied for in 2002came back rated 60/40 PT/IU I Have also held that since that date. Well back in 4/08 I received a letter reducing my rate back to 60% because of 2140 employment questionnaire they said they did not receive. I did mail it like I always do but, I Guess it didn't reach them. Immediately hand carried a new one the day after I got their letter

and got a stamped and received copy of the 2140. Now this was all supposed to go away as soon as the paperwork caught up. The told me at the Varo This should not be a problem and I asked for a letter of proof of 100% for my life insurance so they would continue paying my premiums. They gave it to me with no problems. I know this is wordy but please read on.

The problem started when the exam scheduled for me because of questionnaire was still on. It should have been stopped along with the other proceedings. When I called the VARO I Asked why it was still on and the rep said because the 2140 was not in , again I told him it was and have a stamped copy. I Asked him again and was told the exam would continue because someone on the rating team wanted it to and no reason was given. So I went to DAV and let them represent me. I also went to C&P which was for IU. By the way the day after my phone call to VARO about exam I received a letter that said periodically the VA reviews claims to verify the cond. and to see if its properly rated. I am rated for bilateral shoulder Postoperative status code 5202 Left at 30% ,right at 20% since 2/16 /76 . when I applied for an increase in 02 because my cond. had worsened-and it came back ; service connection for DJD rt shoulder 10% and SC for DJD left shoulder at 10%

They added the 10 and 10% for 10% which brought me to 60% and awarded me 40% IU P&T. I never applied for IU It Was give to me without the 8940 application for IU. I believe this is an inferred claim? Well after my C&P was done I got a call from the RO asking me to fill out the IU application because it was not done in 02 and they needed it for their records this didn't sound right so I asked what if I don't turn it in, He said it would go bad for me. then I asked him are you folks trying to take my IU away? The rep said No not at all we just need it for an up date This conversation is almost word for word, I also have his Name and what office he works in. So I receive the VA proposed reduction in rating for me. and under the evidence section there was my IU application form that was supposed to be for the 2002 records. also the c&pwhich was done poorly and by a GP doc. I logged a complaint with the pat adv. at Hosp. What the Va is saying is that because they added the djd to my postoperative status it is pyramiding therefore it is considered a CU&E based on the 2002 records. I have held my 100% for over6 yrs. I am currently waiting for a date for the predetermination hearing at my VARO. The DAV submitted my disagreement letter on 7/20/08. The bottom line is my cond. has worsened to the point of only surgery to correct the problems . This was recommended by the VA orthro DEP and My Private MD. Two years ago I went to the VA for a orthro check up on shoulders at that meeting They said it could only be fixed by surgery and exercise but only come back if you want surgery. I have this report which the VA missed when the reviewed me for this reduction. Ok Sorry it was so long thanks for reading. I'm looking for advice, resources, any input would be most appreciated

Thanks WINGER 72