Whatever Happened To

[mrsvet28]

WAS JUST THINKING -HAVENT HEARD MUCH LATELY ABOUT BENEFIT OF THE DOUBT -SEEMS LIKE IT VANISHED-- DOES IT STILL STAND IN APPEALS PROCESS- HAVENT READ THEM LATELY :)

[sixthscents]

Broncovet,

I... well I am speechless at your posts here. First and foremost, since when does a CUE have ANYTHING to do with "benefit of the doubt"... A CUE, by its very definition is CLEAR and UNMISTAKEABLE, there can be no doubt or there is no CUE. A CUE is a very special and very narrowly defined instance. Now I'm no cheerleader for the VA, but stating that since they don't allow the application of "benefit of the doubt" to lie in favor of a veteran in a CUE case is... well absurd.

Again just to make sure we all understand... a CUE claim is a CLEAR AND UNMISTAKEABLE ERROR... this means that any person looking at the facts inherent to the claim would judge that an error had been made. It must be a glaring error, obvious to anyone who looks at the case and is knowlegeable of VA law. There can be no "doubt" about a CUE... or it is NOT a CUE...

I have filed and won a CUE claim, and seen many sink beneath the waves because they followed the same sort of logic here. Not every error made by the VA is a CUE error.. thats just a fact. In those the benefit of the doubt may come into play, but not in a CUE claim.

Again... Clear and Unmistakeable... the title gives it away I think.

Bob Smith

Edited November 9, 2009 by sixthscents

[broncovet]

Bob Smith

Precisely. "Benefit of the doubt" and CUE rules are in conflict with one another.

If you read the following opinion by two VA lawyers, offered at http://www.vawatchdog.org/09/nf09/nfnov09/nf110909-3.htm

you will agree that the Supreme court has ruled ALL reasonable doubt be resolved in favor of the claimant, and makes NO exceptions for when the Veteran appeals beyond the one year period (CUE).

The Supreme Court observed that claimants had numerous

rights while pursuing a claim, including the right to a hearing, 30 ex parte

proceedings, with no opposition by a government official,31 assistance

25 38 U.S.C. § 211(a) (1982); see also Walters, 473 U.S. at 307 (the Court, citing to Johnson

v. Robison, 415 U.S. 361 (1974), acknowledged that an exception to the general preclusion

of judicial review was a constitutional challenge).

26 Nat’l Ass’n of Radiation Survivors, 589 F. Supp. at 1305.

27 38 U.S.C. § 3405 (1982).

28 See, e.g., Walters, 473 U.S. at 309; see also The Avalon Project at Yale Law School,

http://www.yale.edu/lawweb/avalon/presiden...ug/lincoln2.htm (last visited Sept. 1, 2008).

29 Walters, 473 U.S. at 309.

30 38 C.F.R. § 3.103© (1984).

31 Id. § 3.103(a).

8

by the rating board in developing facts pertinent to the claim,32 and

consideration of all evidence offered by the claimant.33 Further, the

Supreme Court pointed out that all reasonable doubts had to be resolved

in favor of the claimant.34 Finally, the Supreme Court observed that BVA

hearings were subject to the same rules as local agency hearings and

were likewise ex parte, with no formal questioning or cross examination,

and no formal rules of evidence applying.35

Edited November 9, 2009 by broncovet

[sixthscents]

Again the point you seem to be missing is that a CUE claim is NOT an ordinary appeal. As such there is no conflict. If there is any doubt that there might be a CUE, then by definition it will be denied since it is NOT a CUE.

A lot of people seem to be under the impression that if the VA makes a mistake, then that is a CUE. This is simply not true. Only if the VA makes a mistake in which there is no doubt they did... is a CUE claim relevant. So the whole idea of "benefit of the doubt" simply does not apply.

A CUE claim is not where the rater make a poor decision, nor when the made a biased one, nor when they did not grant reasonable doubt. A CUE claim is where the VA CLEARLY without a doubt makes a mistake, and its normally a procedural one, not a resolution of if something meets a certain standard of acceptance as being either for or against the veteran.

For example: a veteran who's rating was based upon evidence which the rater weighed incorrectly, based upon their opinion... (the rater's opinion that is) well thats not a CUE claim. That an appeal issue.

A rater who fails to consider a claimed condition for rating, yet mentions it in their final decison... well that is a CUE since they failed to even rate the condition - now this does not mean the vet will get a favorable rating, but that the claim must be reviewed and the missed claimed illness or injury included.

The whole idea behind a CUE is that there really can be no doubt, at all, whatsoever, that the rating authority made an error. Normally the fail to consider some evidence, or fail to rate a claimed illness etc. So even if a veteran gets the VA to admit a CUE is valid, then mostly all they can do is get the VA to actually consider the evidence in relation to the original claim, or the claimed illness they missed.

I simply dont know how I can make this any clearer.... a CUE is a CLEAR and UNMISTAKEABLE ERROR on the part of the VA. Period. Many people say that the VA made a CUE because they misunderstand that the definition of a CUE is so very very narrow. There can be no reasonable doubt in anyones mind that an error was made... thats a CUE. Simply making a poor judgement, thats still wrong but if the vet files a CUE claim it will be denied, and the rating authority may or may not go ahead and rule on the issue as a normal appeal. They are supposed to, but sometimes they do and sometimes they dont. So a vet can file a CUE claim and waste 2 years.

Literally if the error is so obvious - glaringly obvious - that all of us would shake our heads and all of us would agree an error had been made, well thats a CUE.

Otherwise a normal appeal should be filed.

It also seems you are saying that a CUE is when a veteran files beyond their one year mark, and it's not. Maybe I misunderstood what you wrote, but a CUE claim has nothing to do with filing after the one year mark - except if you can PROVE that a CUE occured in the original claim, you can argue for an appeal based upon the CUE and a benefit date back to the original claim date. If the CUE is upheld the original claim date will be the one applied, not the date of appeal and CUE claim.

CUE's have nothing to do with reasonable doubt. If there is any doubt it AINT A CUE.

I just don't know how to make this any clearer... and there seems to be a lot of confusion on the subject.

Bob Smith

Edited November 9, 2009 by sixthscents

[john999]

My understanding is if the VA were to exclude evidence form a rating that might be a CUE. The resolution of the CUE would be to force the VA to reweigh all the evidence and come to a new decision. You could very will still lose based on a new reweighing of evidence . If that were to happen could you go forward with an appeal of this new decison? I have a CUE claim based on exclusion of evidence that my lawyer believes would have resulted in a much higher rating. If the VA grants the CUE the VA will have to reweigh the evidence and come to a new decision. I am worried because I think the VA will just come up with the same rating, so what do I do then? Get me? It is going to the BVA. If we fail at the BVA then I guess it is the court if the lawyer wants to pursue it which he probably won't. My claim is not based on reweighing evidence. It is based on exclusion of evidence that would likely have resulted in a different decision.

[Pete53]

Using BVA decisions helped me win my claim.

[john999]

Pete

Maybe your raters were not up on the fact that BVA decision don't set precedents. As long as you won that is all that counts. Winning is not the main thing, it is the only thing. You probably just drowned them in evidence.