Berta

[carlie]

Hey Berta,

I can't get your CUE Blog anymore. Has it been deleted ?

[Berta]

Yeah- I removed some personal stuff there and the blog went with it---sorry-

I have stated at hadit many times whatever the blog said anyhow-on Cue claims-

Must be a final unappealed VARO decision

Must involve erroneous application of VA case law and regs at time of CUE

Must manifest different outcome: IE: like more retro, or proper SMC etc-

The best place for CUE info is CUE claims at the BVA and the CAVC-

whether denied or awarded -that is the way to get a take on how VA decides CUEs.

It must be legal error ,not medical judgement and is not dependent on challenging Duty to Assist or Relative Equipoise-

Legal error only-

This is a complex CUE claim but the veteran succeeded- I like this case because there are many nuances to the CUE and the veteran's position:

http://www.va.gov/vetapp01/files02/0117428.txt

Also it seems the BVA covered all the basis here as far as explaining what a CUE is and why they awarded this veteran.

"The veteran's CUE motion and supporting arguments are vague

and imprecise as to the precise legal basis by which he seeks

to invalidate the November 1982 Board decision. He maintains

first that the termination of the TDIU was "illegal and

irresponsible," and second, that the VA examination performed

in November 1980 was inadequate."........

"The lack of specificity as to the nature of the alleged CUE

is not by itself fatal to the motion, however, in view of the

decision of the United States Court of Appeals for the

Federal Circuit (Federal Circuit) in Disabled American

Veterans, et. al, v. Gober, 234 F.3d, 682 (2000), wherein the

Federal Circuit invalidated Rule 1404(B) (38 C.F.R.

§ 20.1404(B)) as it operated in conjunction with Rule 1404©

(38 C.F.R. § 20.1404©) to deny review of a CUE motion for

failure to comply with the regulatory pleading requirements.

The Board is now free to review the decision for CUE

regardless of whether there are specific allegations of fact

or law that would have satisfied the regulation.

In this regard, it is relevant to point out that the Board's

decision mischaracterized the issue before it in November

1982 as entitlement to a TDIU. The case was before the Board

on a direct appeal of a rating decision that had terminated a

TDIU that had previously been awarded. Consequently, by

deciding an issue that was not on appeal, i.e., whether the

veteran had initial entitlement to a TDIU, the Board did not

address the issue that was procedurally before it, which was

whether the reduction of the rating was proper. The Court

has held that VA failure to properly apply the regulations

controlling reduction of ratings renders such a reduction

void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993);

Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). See also

Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Ternus v.

Brown, 6 Vet. App. 370, 376 (1994) (Failure to apply

reduction regulation was clear and unmistakable error).

"The result of failing to acknowledge the distinction between

the propriety of the termination and a determination of

initial entitlement to a TDIU was to deny the veteran the

benefit of the more stringent evidentiary standard applied in

considering the propriety of the termination of a TDIU.

Under § 3.343©, actual employability must be shown by clear

and convincing evidence. The "clear and convincing" standard

requires that capacity for work be proven to a "reasonable

certainty" but not necessarily be "undebatable." Vanerson v.

West, 12 Vet. App. 254, 258 (1999). The clear and convincing

standard of proof is an intermediate standard between

preponderance of the evidence and beyond a reasonable doubt.

Fagan v. West, 13 Vet. App. 48, 55 (1999); Olson v. Brown,

5 Vet. App. 430, 434 (1993). The procedural burden of ......"

Although the vet was not as specific as to the actual regs that were broken, on it's face, this was obvious to the BVA that a CUE had been committed.

I am leaving much out here but this is crucial:

"The Board finds that if the provisions of 38 C.F.R.

§ 3.343© been applied as the basis for the Board's review

in accordance with the law and if the sufficiency of the

evidence to establish actual unemployability been considered

under the "clear and convincing standard," the outcome of

that decision would have manifestly different. Therefore,

the Board's November 1982 decision denying the veteran's

appeal of the termination of a TDIU involved CUE. Such

decision is reversed and restoration of a TDIU from the date

of its termination is granted.

ORDER

Restoration of a TDIU on the basis of CUE in the Board's

decision of November 16, 1982, is granted."

This claim was awarded in 2001. It is a great example of how a CUE can work.