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.

[Guest Berta]

It is explained within this OGC pres op-

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

The appeal period is for appeals. After a decision becomes final (unappealed)it can be CUED if it contains legal error.

Also there is a large section on this facet -final decision- in any VBM pubished by NVLSP.

[Jay Johnson]

It is explained within this OGC pres op-

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

The appeal period is for appeals. After a decision becomes final (unappealed)it can be CUED if it contains legal error.

Also there is a large section on this facet -final decision- in any VBM pubished by NVLSP.

That link merely shows that you cannot reopen a claim once the appeals process has ended and that the only way it can be opened is by CUE and/or new and material evidence. It doesn't say anywhere that CUEs are limited to cases that have been "finally adjudicated". A CUE is just a legal argument...you can raise CUE at any time as long as you follow the very strict guidelines for what is and isn't CUE. Essentially, a CUE is a form of appeal (a legal appeal)....I just don't see anything in the regs to suggest otherwise. It appears that you are mixing the term "final and binding" with a "finally adjudicated claim"......final and binding merely refers to any decision made by any VARO. Final and binding doesn't say anything about exhausting appeals or the one year expiration noted in a "finally adjudicated" claim (see 3.104 and 3.105 in this thread).

Again, the DRO, the director and my other contact all said I could file a CUE at any time once the 60 day period expired AND that I could file both a CUE and a NOD on the same claim.

I believe CUEs are being under-utilized at the moment, because they are greatly misunderstood. Most people don't know what constitutes a CUE and, by this thread, there seems to be debate on when one can even file a valid CUE.

[Guest Namvet6567]

Berta, I'm going to have to agree w/Jay, this time, if I'm understanding it correctly. CUE can be claimed, at any time, after a decision is made. I still use "grievous error" for claims that haven't tolled the one year deadline, because it doesn't confuse the adjudicator. I know someone will tell me "grievous error" has been removed or whatever by the court, however I just won one, within the past 3 weeks using grievous error. CUE is used to reopen a claim whose appeal period has tolled but can be used anytime prior, also. As I stated, I prefer grievous error. The important part is that it gets corrected.

[frosty69]

I filed a claim for grave procedural error, on a tinnitus and bilateral hearing loss claim, with the hearing claim going back to 1971. I was denied for the tinnitus, by them stating it didn't happen in the service, or is a result of your service, I feel having served in a combat zone, more then proves the tinnitus claim, and for the hearing claim, they keep bringing up no new and material evidence, that seems to be the stock answer for everything. hard to have evidence from the service, when all my records after basic training are gone. I even had otitis externa, while in Vietnam, but they say when i got discharged, I didn't have residue of it, but the trouble is, never had a hearing test when i got discharged, but no way to prove it. the VA didn't even acknowledge the grave procedural error, so that didn't help me any. now will probably try for a cue claim, nothing to lose. according to the hearing test I supposedly had for a claim in 1971, my hearing was better, then before i went into the service, never thought a persons hearing improved, after being in a combat zone, I feel the hearing test that they say is mine, isn't mine, it has my name on it, and my claim number, but has the wrong social security number, and it says, I had a hearing test at another VA, I have never been to before, they won't acknowledge this information either, as I have submitted these papers many times.

[Guest Namvet6567]

Frosty, have you appealled it thru the BVA?

[frosty69]

Namvet6567

I am in the process now, just dropped off a NOD, the other day and asked for the form to send it to the BVA, but haven't received it yet, if i would of used my brain, would of asked for it, when I was in there, but with my poor memory, I forget so easily.