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.

[Jay Johnson]

3.104 and 3.105 clearly show that a "final and binding" decision is NOT a finally adjudicated claim (separate reg also linked in this thread)...you are mixing words between two separate regs. A final and binding decision is nothing more then any decision made by any VARO (it even says it in the decision they send you...IE - "after 60 days this decision will be final and binding", straight from my wife's most recent decision). I know of 2 different vets (one in this region and one in philadelphia region) who have put in CUEs during their appeals process and one of them won their claim based on the CUE (it was cited as "clear and unmistakable error" in his decision).

Again, this isn't a concrete thing and I'm guessing certain ROs are doing things differently, but there is nothing in any reg or court decision that EVER said the claim must be "finally adjudicated".

"final and binding" = Ro decision, nothing more

"finally adjudicated" = an unappealed claim (after 1 year) or a claim that has exhausted ALL appeals.

You are correct in that the only way to open a finally adjudicated claim is to CUE it, but that doesn't mean the claim HAS to be finally adjudicated to CUE it....absolutely nothing in the regs, or court cases, even suggests that.

This is a case of certain people, the VA included, misusing their own regs (nothing new here)...they have twisted the term "final claim" into meaning finally adjudicated, but NO ONE, of an official nature, has EVER used the term finally adjudicated in any court decision in regards to CUE that I am aware of.

I push this issue, because I KNOW the RO's (at laest two) are accepting CUEs during the appeals process...this gives veterans a two-pronged attack if their case merits a CUE in the early stages. It also, gives them two completely different sets of eye reviewing their claims from two different perspectives. IMO, this double their chances of winning at every level (CUEs and NODs can be appealed to the BVA separately.

P.S. - 38 USCS + 38 CFR make no mention of finality in regards to CUE...all of the applicable CUE regs are listed in this thread. The CAVC NEVER once said a claim must be "finally adjudicated" and I haven't seen anything from the OGC or NVLS that suggests a CUE MUST be finally adjudicated. They calim the CUE must be final and binding (which isn't even stated in the reg for CUE), then insinuate that final and binding means that the claim must have exhausted ALL appeals, which clearly isn't true as per 3.104/3.105. We really need to push back on this issue because it could help a LOT of veterans if we get it clarified. BTW, there isn't a SINGLE court case in history that shoots down a CUE for being filed before appeals were exhausted......If it were established law that you can't file CUE during appeals there would, at least, be one case where someone tried.

Edited March 18, 2006 by Jay Johnson

[Jay Johnson]

I wanted to add that I'm not trying to push this opinion on anyone...I've done a lot of research on this topic and a LOT of the legal advisors on this matter take the COVA's thoughts on CUE to mean that the claim MUST be finally adjudicated. My argument is that these opinions are reading too much into the COVA decisions and do not hold up to the regs they are citing. The COVA states that a claim must be "final", but does not say that ALL appeals must be exhausted or that the claim must be finally adjudicated. There seems to be a solid grey area here that people are jumping to conclusions over. If the COVA meant for CUE oto be "finally adjudicated' then why not cite 3.160 instead of 3.104? In my opinion, file your CUEs with your NODs and make the VA sort it out and argue any decision they make all the way up to the COVA to clarify the issue. At the very least, it will put more eyes onto your claim which never hurts:-)

Edited March 18, 2006 by Jay Johnson

[Guest Namvet6567]

Read this for some insight. On one hand I agree but on the ther hand . . . As I interpret the court, which may be wrong, we can file a CUE on a final RO decision, however, if the RO made an error prior to the tolling of the one year appeals period, it can't be CUE because it's considered to be a still pending unadjudicated claim. Am I understanding this correctly???

My late friend, Tom McNell and I, won a CUE back to 1955, based on the fact that the VA had ordered lab work, at the time of the C&P, and failed to wait for those results before issuing a denial. He ended up getting about 37yrs retro at 20% and was appealing the 20% award when he died of unrelated causes. I should point out that we won at the RO, DRO, level.

http://webisys.vetapp.gov/isysquery/irl5ea3/2/doc

Edited March 18, 2006 by Namvet6567

[Jay Johnson]

Read this for some insight. On one hand I agree but on the ther hand . . . As I interpret the court, which may be wrong, we can file a CUE on a final RO decision, however, if the RO made an error prior to the tolling of the one year appeals period, it can't be CUE because it's considered to be a still pending unadjudicated claim. Am I understanding this correctly???

My late friend, Tom McNell and I, won a CUE back to 1955, based on the fact that the VA had ordered lab work, at the time of the C&P, and failed to wait for those results before issuing a denial. He ended up getting about 37yrs retro at 20% and was appealing the 20% award when he died of unrelated causes. I should point out that we won at the RO, DRO, level.

http://webisys.vetapp.gov/isysquery/irl5ea3/2/doc

Well, an RO can CUE itself whenever it wants, so why can't we? Under the M21 thing it states that a supervisor can only overturn a rater's decision if they find CUE or ask for help from the "central office". The same is said in 3.104 and 3.105....One RO can CUE another RO even if you're still in appeals. Basically, any time the RO finds that a rule of law has been broken they can claim CUE ergardless of the status of your claim, so why then should we be limited in when we can call CUE?

Either way, the wording is weak and the law is far from concrete......I'm not saying Berta is wrong, but, at the same time, we shouldn't discourage vets from filing valid CUEs even if they are in the appeals process, because it may become a precedent setting case (of course that's *if* the RO accepts the CUE during appeals...seems some RO's interpret the law differently).