I find this portion of CUE very disturbing, the statement seems to broad in its scope to truly understand. To me, it would seem that even if you showed it was absolutely clear that their would have been a different result because of the error. Then you must show how it would have manifestly changed the outcome.
If the outcome only left questions as to the finality of the decision, that is to say that there was enough evidence to support say the veteran's original diagnosis, just as there was not enough evidence to support the VA's decision that a change in the diagnosis was warrented, then what is the Veteran left with, if the evidence that supported the original diagnosis was not sufficient to be rated at 10% or better ,but was at least as likely enough to be SC. Is this sufficient to say it manifestly changed the outcome when he was denied SC and now it showed he should have been SC even at 0%.
It's 2:00 a.m. pst. and I can not sleep even though I am exhausted and desperately need to sleep. But in the mean time, my mind won't let go of this question, since it seems to be the one question that is holding up finalizing my CUE claim.
Question
Rockhound
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. 38 C.F.R. § 20.1403©.
I find this portion of CUE very disturbing, the statement seems to broad in its scope to truly understand. To me, it would seem that even if you showed it was absolutely clear that their would have been a different result because of the error. Then you must show how it would have manifestly changed the outcome.
If the outcome only left questions as to the finality of the decision, that is to say that there was enough evidence to support say the veteran's original diagnosis, just as there was not enough evidence to support the VA's decision that a change in the diagnosis was warrented, then what is the Veteran left with, if the evidence that supported the original diagnosis was not sufficient to be rated at 10% or better ,but was at least as likely enough to be SC. Is this sufficient to say it manifestly changed the outcome when he was denied SC and now it showed he should have been SC even at 0%.
It's 2:00 a.m. pst. and I can not sleep even though I am exhausted and desperately need to sleep. But in the mean time, my mind won't let go of this question, since it seems to be the one question that is holding up finalizing my CUE claim.
RR B)
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