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.
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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.
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