Cues And Bva Decisions

[Guest Berta]

Only a VARO or BVA decision that is Final can be CUED.

A BVA remand is not a final decision.

If you get a partial remand and one denial still holds at the BVA, then that specific denial could be Cued.

If you get a BVA denial , you also get info as to appealing to the CAVC.

You have 120 days after the mailing date of the BVA decision to file a NOA (Notice of Appeal) with the CAVC. Then you will hear from the lawyers-

Within that time of potential appeal , you cannot final a CUE because the decision could be appealed- therefore it is not final. Once it is docketed at the CAVC a CUE claim on it is technically a moot point.

However the CAVC claimant can raise the issue of errors in the BVA denial.I suggest they read Chapter 15 of the VBM before they do that.And certainly check with their CAVC attorney on this.

Also the claimant (since the CAVC does not consider 'new' evidence- (if you have that it should have been considered by the BVA or the VARO )the claimant can get the CAVC to expand the record by getting them to "take judicial notice"- that is, adding attachments that is technically evidence the BVA did not have.If you get a good CAVC lawyer they will know how to do that.

If the BVA decision has not been appealed to the CAVC within the specific time frame, the only avenue left in this case is a CUE-if there is actual proof of clear and unmistakable error.

The advantage of CAVC is this- I sure do NOT suggest letting that 120 days run out for filing, because you think you can file a CUE anyhow-

The CAVC can catch errors made at the BVA level- such as failure to issue adequate statement to support its decision-or the board used inadequate records, etc.

They do that all the time.

The CAVC could potentially remand the claim-or overturn the BVA decision-

The VBM (2004) makes this point :

"In nearly 70% of all appeals decided on the merits by the CAVC over the last eight years, the Court has, at least in part, reversed the BVA decision or vacated it and remanded it for further administrative proceedings."

The point here is that -if you get a BVA denial and are within the 120 days for filings to the USCAVC, by all means do that and get your docket number.

That is my opinion- dont wait for the 120 days to run out in order to file a CUE on it.

I get emails about CUE claims that are not CUES at all or that have other ways of approach because they are still open claims.

If you feel you have a CUE claim I suggest buying the most recent version of the VBM as the $125 or whatever it costs can easily be absorbed by the knowledge there that can help you succeed in it.

They cite numerous CUE cases that you can find on the net.

Also if you are going before the CAVC that cost can become an asset there too.

[rogus]

Berta - I'm confused here. I am assuming CUEd means clear and unmistakable error? If that is so and what your saying is correct how can a VARO issue a denial based on CUE?

[Jay Johnson]

I don't believe that is correct. I have pointed this out using the regs in the past and I recently submitted (and had accepted) 2 CUE claims while simultaneously having a NOD in for a DRO. A CUE is simply an argument based on VA regulations and ONLY VA regulations...you can argue your case based on medical opinion and other factors WHILE arguing a separate legal matter that falls under CUE. CUEs also go to a different department in the VARO all together and is handled separately from your NOD (The DRO we spoke with said we would have to get in touch with our contact to have the CUE's dropped after he gave us what we wanted because he had no power over the CUEs). Again, the laws pertaining to CUE say that the decision must be "final", but "final" under VA regulation is simply any decision that has been made by the VARO that has gone into effect (IE - You can't CUE while you're still in the 60 day period after a decision).

Regardless of all this, I understand that the laws surrounding CUE are very vague at best and I'm not saying I am 100% correct, but given the definition of a "final decision" by the VA and the fact that CUE merely calls for a "final decision", I don't see a need for a claim to have gone through the BVA (and all other appeals) before filing CUE. I'll try to dig up the terms later, but we've gone over this before.

Dug up the old post wher we discussed this. Here are the regs pertaining to CUE and finality:

§ 3.160 Status of claims.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

§ 3.104 Finality of decisions.

(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part.

§ 3.105 Revision of decisions.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply.

§ 5109A. Revision of decisions on grounds of clear and unmistakable error

Release date: 2005-10-11

(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

( For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

© Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.

(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.

And here's a link to that old thread: CUE Debate

Edited March 17, 2006 by Jay Johnson

[Guest Berta]

Jay-you are absolutely correct (by the way-nice to see you back!)

A final and unappealed decision from a VARO can be CUED at the VARO.

A final and unappealed decision from the BVA can be CUED at the BVA.

I say CUED- what I mean is one can file a CUE claim on these final decisions at the VA that had jurisdiction over the decision.(The VARO or the BVA)

I have two CUES at the VARO.

The recent letter they sent had 6 statements that I answered regarding the claim and they also asked for evidence but did not specify which CUE claim.

I re-sent the evidence that I already sent them and covered both CUE claims:

Copy of final unappealed VARO decision-dated 1997

Copy of the actual VA regs and M21-1 regs that they broke.

Manifested out come: I stated, but for the clear and unmistakable error, the veteran would have received $69,240.(SMC - he was never considered although he was 100% SC PTSD and 100% under Section 1151)

The regs are quite clear on this issue.

They state that when a vet is eligible for A & A or Housebound and denied or not considered properly , it is a CUE.

I expanded that -as the medical evidence obviously supports the "S" award ( A&A or HB) that would have to be considered along with the veteran's Section 1151 disabilties clearly listed and rated on the decision-in 1997.Yet the medical evidence supports, in fact, SMC at the R-1 level.I stated the evidence they have which supports that fact.

I sent a OG Pres Op and 4 BVA links that support the fact that Section 1151 claimants are as eligible for SMC as any other claimant.

The VA in 1997 stated that the veteran's HBP was so poorly controlled (listed at 10% NSC) that this factor alone (regardless of the other misdiagnoses-heart disease and strokes and improper meds for condition he did not have) if properly controlled, could have saved his life.That report is part of the evidence, as well as two SSA awards and the Sec 1151 award.

If they deny I will appeal to the BVA. If denied there I will appeal to the CAVC.

I asked -if they deny- for specific VA case law to support their denial.

A CUE denial has the same appeal rights as any other claim.

As Jay said- it is not a medical issue- it is an error in their application of regs in existence at time of the alleged CUE. There has to be an outcome - more retro usually- some significant benefit to the claimant that the CUE prevented them from getting.

Edited March 17, 2006 by Berta

[Jay Johnson]

A final and unappealed decision from a VARO can be CUED at the VARO.

Hey Berta, nice to be back:-) What, exactly, do you mean by "unappealed"? In our case we were in the process of appealing the decision (had a NOD in for DRO review), while also having two CUEs in for breaking 3.327 and the reg. about not superseding another VARO's decision (Exact reg escapes me ATM). They (the seattle RO) seemed to handle both appeals separately....when the DRO contacted us he only had the NOD information and stated that the CUE was in a different department.

I almost wish I would not have dropped the A&A issue just to see how the CUE played out:-( It would be a very good tool to use if veterans could file both NODs (on the medical points) and CUEs (on the legal points) at the same time (which seemed to be the case as per my contacts and my contacts were quite knowledgeable......one of which was the VARO director).

[Guest Berta]

Jay- I mean a decision that the vet never filed a NOD on or never pursued with a formal BVA appeal.

Or the denial came from the BVA and the vet never pursued the denial through the CAVC.

Violation of 38 CFR 3.327? HMMMMMM

Very Interesting tactic!!!!

I never read all this before-

this is on examinations:

http://72.14.207.104/search?q=cache:j3hZR1...k&cd=1&ie=UTF-8

Sure might help someone here. Although just about everything with VA is a medical issue, Jay is correct that the regs they apply make a CUE claim a legal issue-

The minute a VARO employee starts to write down a diagnostic code and/or fails to go by the books (38 CFR and M21-1) they can commit errors which can be overturned through the NOD or- after the appeal period has passed, through a CUE claim.

I feel that their legal errors should be stated within NODs whenever possible-

as well as any error in addressing or weighing the medical evidence.

If they aren't addressing your evidence- it is violation of Duty to Assist etc-

If the DC is wrong ,causing you the wrong rating-tell them in the NOD.

I responded to them in Sept that the DRO had violated M21-1 Dro Job description-

my de novo review had to start all over again-

It pays to tell them right from the git go if they are violating the regs.

Is that other reg about "subsumed" matters?

[Jay Johnson]

Jay- I mean a decision that the vet never filed a NOD on or never pursued with a formal BVA appeal.

Or the denial came from the BVA and the vet never pursued the denial through the CAVC.

Well, that's where I think we may have a difference in the interpretation of CUE. I don't "believe" you need to wait for that "one year period" to file CUE. I think you can file CUE as soon as the VARO makes a decision AND you can file CUE WHILE filing your regular appeals. The director here in seattle told me that they take two different tracks...in fact, you can appeal your DRO decision to the BVA (if needed) and appeal the CUE decision (by the VARO) to the BVA at the same time on the same subject.

Basically, you seem to be saying that you need a "finally adjudicated claim" in order to file CUE, but I can't find anything in the regs that makes that assertion? I, on the other hand, am saying that you can file CUE along with a NOD at the same time on the same VARO decision...in my case, I filed a NOD based on the level of disability they gave her (IE - their medical interpretation) AND, at the same time, filed a CUE on the same subject, but based it purely on violating 3.327 (one CUE) and 3.104/3.105 (the second CUE based on jurisdiction issues pertaining to their A&A decision).