Question On Cue

[Berta]

I got an email notification this AM that someone had a question on CUE at the BVA, but Ideleted the email and cannot find the question here- then again I am not quite back to normal yet- (whatever that is!)

I think this was what the question was about-

When a vet files a CUE claim against the BVA (on a fnal BVA decision)

the regs they use are withn 38 CFR Part 20- (20.1400-1402)

These regs are used within Jarrell, 20 Vet App at 33 and also in Russell.

Bsically the same CUE principles apply to the ROs as well as to the BVA.

NVLSP hwever makes this point:

BVA strictly adheres to the premise that -had the error not produced a different significant result-the error is not clearly unmistakable.

Section 20.1403 of 38 CFR s the BVA definition of CUE-

and the Bell Decision of July 21,1992 can impact on what a BVA CUE is or isnt.

Bell V Derwinski 1992

[Wings]

PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

URL http://law.justia.com/us/cfr/title38/38-2.0.1.1.5.html

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.

(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.

© 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)

[stillhere]

Berta, If a hearing loss claim is denied and then the vet gets their C-file and information is in the file that clearly shows there was a hearing loss at discharge. Is this grounds for a CUE? Also while I am on the subject if I am having no luck in getting my claim reopened can I go ahead and file a CUE while I am waiting?

[carlie]

stillhere,

You can only file a cue on a final unappealed decision.

jmho,

carlie

[Berta]

If the hearing loss was at a ratable level- that could be a CUE based on the wrong rating used in the decision.

But if the hearing loss was ratable- why didnt you get a medical discharge?

Can you tell us the exact wording of the denial and how the VA stated they used your SMRs to determine the denial?

Edited December 17, 2008 by Berta

[john999]

I see where the a CUE cannot be based on evaluation of evidence. However, would that mean situations where the evidence was never evaluated? For instance SMR's that were never evaluated, or medical reports that were in the hands of the VA, but were never evaluated? It seems to me that you have two issues in these cases. Not evaluating available evidence is the CUE, but after that the VA has to re-evaluate the entire package of evidence with the evidence that was originally not evaluated included. The VA is supposed to evaluate all relavant evidence. How can a vet ever get a just decision if the VA can pick and choose what evidence they are going to evaluate? That is fundamentally wrong and goes against all concepts of due process.

This is my CUE and I am waiting 5 months to find out. My lawyer believes it was a CUE because the VA had a medical report that they just ignored when they evaluated my claim. They only used evidence from a VA doctor and my SMR's, but not my civilian doctor.

[stillhere]

stillhere,

You can only file a cue on a final unappealed decision.

jmho,

carlie

Carlie, In 1983 I filed for hearing loss at the time mainly to get some help with hearing aids. I was denied so I said screw them and paid for my aids myself ever since. so it is was an unappealed decision. I have just recently been trying to get it reopened, that brings me to the question am I going about this right by trying to get it reopened or should I just file a cue claim and drop the reopen claim. Hope this helps.