ptsd All About "cue" Claims

[broncovet]

This information is believed to be accurate and written by a VA attorney. Hope this helps a VET.

The CUE Claim

John Forristal, Attorney At Law

What’s A CUE Claim?

CUE means “Clear and Unmistakable Error” in a final decision by either a Department of Veterans Affairs Regional Office (VARO) or by the Board of Veterans’ Appeals (BVA). A decision becomes final when either appeals have been exhausted or the time to appeal has expired. CUE claims are attractive because there is no time limit for filing the claim and if successful, the veteran will receive back pay dating back to the effective date of the original claim containing the CUE. Therefore, a successful CUE claim could result in a large pay out to the veteran. But, unfortunately, CUE claims are difficult to prove because you cannot submit new evidence and must rely on the record as it existed at the time of the decision.

What Exactly Constitutes CUE?

CUE is defined by the Code of Federal Regulations as:

Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied.

38 CFR Section 20.1403(a)

In plain English, CUE is an error that is obvious upon review and the error caused an incorrect decision. Or put another way: but for the obvious error, the decision would have been different.

Importantly, the CUE claim must be based on the record and the law as it existed at the time of the decision that allegedly contained the CUE. Therefore, no new evidence is permitted in a CUE claim nor can you argue a change in the law warrants a different decision.

But, like most things in VA world, there is an exception: for BVA decisions issued after July 21, 1992, the record that existed on the date of the decision includes both the record in the BVA’s possession on that date and evidence that could “reasonably be expected to be part of the record” on that date. 38 C.F.R. § 20.1403(:D(2). That means if you can show that the BVA should have had VA medical records or other adjudicative records in its possession on the date of the decision, even if those records were never sent to the BVA for review before rendering its decision, these documents are officially part of the record. This is known as “constructive notice.”

Constructive notice can be a powerful ally in a CUE claim and therefore you should carefully compare the record the VA sent to the VARO or BVA and the record that the VA actually had in its possession. If you find such documents, and these documents, had they been sent to the VARO or BVA, would have resulted in a different decision, you have a good claim for CUE.

You Must Specifically State the CUE:

When filing a CUE claim, the veteran must plead CUE with specificity. The CUE claim must clearly and specifically set forth the “alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.” 38 CFR § 20.1404(:) (2007).

This means that the veteran must present a detailed and logical argument showing: (1) the alleged CUE of fact or law; (2) the factual or legal reasons for the alleged CUE of fact or law; and (3) why the decision would have been “manifestly different but for the alleged error.” If you simply state that the previous decision contained CUE without providing exactly how the previous decision contained CUE, your CUE claim will be dismissed.

Even though the VA must give pro se CUE claims (claims filed by the veteran himself without a representative) a “sympathetic reading,” it would be folly for any pro se veteran to submit a generally worded CUE claim such as: “the decision of the RO contains CUE.” You need to show the CUE and make a factual or legal argument (depending on whether the alleged CUE is based on fact or law) why the decision would have been manifestly different but for the CUE.

The error might be “Clear and Unmistakable” to the veteran, but do not assume it is clear to the VA. Make a deliberate, well-reasoned, point-by-point argument that clearly demonstrates the CUE. If the CUE claim does not contain the required specific allegation(s), it will be dismissed without prejudice (meaning you can refile and try again or appeal the dismissal to the CAVC).

Furthermore, the CUE claim must be in writing and signed by the moving party or representative. The motion must contain: name of the veteran; name of the moving party if different from the veteran; VA file number; date of the BVA decision that allegedly contains CUE; the specific issue (particular benefit) or issues in dispute. Failure to include the required elements in the CUE brief can result in the claim being dismissed. Don’t let that happen.

Earlier Effective Date for a CUE Claim:

Winning a CUE claim can have huge benefits because the veteran can obtain an earlier effective date. Any previous decision that is subsequently revised or reversed based on a CUE claim “has the same effect as if the decision had been made on the date of the prior decision.” 38 USC § 5109A. In other words, the effective date will be the date of the original denial that contained the CUE. Considering that there is no time limit for filing a CUE claim, this “reach back” to the date of the original denial can be a huge sum for the veteran.

Obviously, because of the earlier effective date, a CUE claim is preferable to reopening a previously finally decided claim. If the appeal time has passed and a veteran is seeking to reopen a previously denied claim, a CUE claim can be very beneficial.

Differences Between a CUE Claim and Reopening a Previous Denial:

A CUE claim is not considered an attempt to reopen a previously denied claim and therefore the VA will not accept new and material evidence as part of a CUE claim. Only the record and law as it existed at the time of the decision (with sole exception of constructive notice discussed above) will be considered in a CUE claim. Furthermore, the VA does not have duty to notify and assist the veteran in developing his CUE claim, nor is the VA’s failure to adequately notify and assist in an earlier claim grounds for CUE. Likewise, the VA does not have a duty to develop the claim pursuant to 38 USCS § 5103(a) and the “benefit of the doubt” presumption under 38 USCS § 5107(B) is not given to the veteran in a CUE claim. Without any of the normal rules to assist the veteran in his claim for CUE, it is imperative to develop your argument and clearly show the CUE in the previous decision.

What Cannot be CUE?

The Code of Federal Regulations provides that the following situations do not constitute CUE:

(d)

(1) Changed diagnosis. A new medical diagnosis that ‘corrects’ an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn’t matter if the evidence on the veteran’s side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: “when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that ‘the result would have been manifestly different.’” Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA’s previous rationale for denying the claim.

Some Examples of CUE

Failure to Fully & Sympathetically Develop Claim

Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA’s failure to “fully and sympathetically develop a veteran’s claim to its optimum.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE.

For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin’s disease, the VA has a duty to adjudicate a claim for Hodgkin’s disease on the veteran’s behalf (Hodgkin’s disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin’s disease would be CUE and the effective date for the Hodgkin’s claim will date back to the date of the back injury claim.

38 CFR 3.156© Using Newly Added Service Records

You can use 38 CFR 3.156© to get an earlier effective date “if the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156©. An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156© to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion).

Where to File a CUE Claim:

Only a final decision (the decision was not appealed and the time to appeal has expired) by a VARO or the BVA can be appealed based on CUE. If a previous decision was appealed to the US Court of Appeals for Veterans Claims (CAVC), and the CAVC decided the issue, a CUE claim is not an option. The only way to get a CUE claim before the CAVC is for the veteran to timely appeal the BVA’s denial of a CUE claim. Also, if the same issue (a request for a specific benefit) has been twice decided by the BVA, a CUE claim is not an option.

If the final decision was at the VARO, then file the CUE claim at the VARO that issued the final decision that allegedly contains the CUE. A denial of the CUE claim at the VARO can be appealed to the BVA.

If the final decision was at the BVA (the decision was not appealed to the CAVC and the time to appeal has expired), then file the CUE claim with the BVA. A denial of the CUE claim at the BVA can be appealed to the CAVC.

When you send in the CUE claim, be sure to request a hearing, either in DC or before a traveling Board at your local VARO. That way you can address all the issues thoroughly and more importantly be able to address any issues the Board members may have about your claim.

Conclusion

The key to a CUE claim is a thorough review of the legal reasons and facts in the record relied upon by the VARO or BVA. If the VA misapplied the law, state exactly how it did so. You must also thoroughly review the veteran’s C-file to determine if there are any documents that support the original claim that were not reviewed by the VARO or BVA. If you find such documents, and review of the documents in the original claim would have resulted in a manifestly different outcome, then you have a good CUE claim. Remember to use the VA’s duty to fully and sympathetically develop your claim when applicable.

[carlie]

bronco,

When you post that much info about CUE

put it in the CUE Forum.

Thanks,

carlie

I might move it there later.

carlie

[jerrbilly]

That is great info Bronco. My DAV rep filed a CUE without even telling me. I found out when I called the 1-800 number. He gave me a copy of the CUE letter so I will try my new scanner and try to post it. I will delete out my personal info.

Jerr

This information is believed to be accurate and written by a VA attorney. Hope this helps a VET.

The CUE Claim

John Forristal, Attorney At Law

What's A CUE Claim?

CUE means "Clear and Unmistakable Error" in a final decision by either a Department of Veterans Affairs Regional Office (VARO) or by the Board of Veterans' Appeals (BVA). A decision becomes final when either appeals have been exhausted or the time to appeal has expired. CUE claims are attractive because there is no time limit for filing the claim and if successful, the veteran will receive back pay dating back to the effective date of the original claim containing the CUE. Therefore, a successful CUE claim could result in a large pay out to the veteran. But, unfortunately, CUE claims are difficult to prove because you cannot submit new evidence and must rely on the record as it existed at the time of the decision.

What Exactly Constitutes CUE?

CUE is defined by the Code of Federal Regulations as:

Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied.

38 CFR Section 20.1403(a)

In plain English, CUE is an error that is obvious upon review and the error caused an incorrect decision. Or put another way: but for the obvious error, the decision would have been different.

Importantly, the CUE claim must be based on the record and the law as it existed at the time of the decision that allegedly contained the CUE. Therefore, no new evidence is permitted in a CUE claim nor can you argue a change in the law warrants a different decision.

But, like most things in VA world, there is an exception: for BVA decisions issued after July 21, 1992, the record that existed on the date of the decision includes both the record in the BVA's possession on that date and evidence that could "reasonably be expected to be part of the record" on that date. 38 C.F.R. § 20.1403( :D (2). That means if you can show that the BVA should have had VA medical records or other adjudicative records in its possession on the date of the decision, even if those records were never sent to the BVA for review before rendering its decision, these documents are officially part of the record. This is known as "constructive notice."

Constructive notice can be a powerful ally in a CUE claim and therefore you should carefully compare the record the VA sent to the VARO or BVA and the record that the VA actually had in its possession. If you find such documents, and these documents, had they been sent to the VARO or BVA, would have resulted in a different decision, you have a good claim for CUE.

You Must Specifically State the CUE:

When filing a CUE claim, the veteran must plead CUE with specificity. The CUE claim must clearly and specifically set forth the "alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error." 38 CFR § 20.1404( :) (2007).

This means that the veteran must present a detailed and logical argument showing: (1) the alleged CUE of fact or law; (2) the factual or legal reasons for the alleged CUE of fact or law; and (3) why the decision would have been "manifestly different but for the alleged error." If you simply state that the previous decision contained CUE without providing exactly how the previous decision contained CUE, your CUE claim will be dismissed.

Even though the VA must give pro se CUE claims (claims filed by the veteran himself without a representative) a "sympathetic reading," it would be folly for any pro se veteran to submit a generally worded CUE claim such as: "the decision of the RO contains CUE." You need to show the CUE and make a factual or legal argument (depending on whether the alleged CUE is based on fact or law) why the decision would have been manifestly different but for the CUE.

The error might be "Clear and Unmistakable" to the veteran, but do not assume it is clear to the VA. Make a deliberate, well-reasoned, point-by-point argument that clearly demonstrates the CUE. If the CUE claim does not contain the required specific allegation(s), it will be dismissed without prejudice (meaning you can refile and try again or appeal the dismissal to the CAVC).

Furthermore, the CUE claim must be in writing and signed by the moving party or representative. The motion must contain: name of the veteran; name of the moving party if different from the veteran; VA file number; date of the BVA decision that allegedly contains CUE; the specific issue (particular benefit) or issues in dispute. Failure to include the required elements in the CUE brief can result in the claim being dismissed. Don't let that happen.

Earlier Effective Date for a CUE Claim:

Winning a CUE claim can have huge benefits because the veteran can obtain an earlier effective date. Any previous decision that is subsequently revised or reversed based on a CUE claim "has the same effect as if the decision had been made on the date of the prior decision." 38 USC § 5109A. In other words, the effective date will be the date of the original denial that contained the CUE. Considering that there is no time limit for filing a CUE claim, this "reach back" to the date of the original denial can be a huge sum for the veteran.

Obviously, because of the earlier effective date, a CUE claim is preferable to reopening a previously finally decided claim. If the appeal time has passed and a veteran is seeking to reopen a previously denied claim, a CUE claim can be very beneficial.

Differences Between a CUE Claim and Reopening a Previous Denial:

A CUE claim is not considered an attempt to reopen a previously denied claim and therefore the VA will not accept new and material evidence as part of a CUE claim. Only the record and law as it existed at the time of the decision (with sole exception of constructive notice discussed above) will be considered in a CUE claim. Furthermore, the VA does not have duty to notify and assist the veteran in developing his CUE claim, nor is the VA's failure to adequately notify and assist in an earlier claim grounds for CUE. Likewise, the VA does not have a duty to develop the claim pursuant to 38 USCS § 5103(a) and the "benefit of the doubt" presumption under 38 USCS § 5107( B) is not given to the veteran in a CUE claim. Without any of the normal rules to assist the veteran in his claim for CUE, it is imperative to develop your argument and clearly show the CUE in the previous decision.

What Cannot be CUE?

The Code of Federal Regulations provides that the following situations do not constitute CUE:

(d)

(1) Changed diagnosis. A new medical diagnosis that 'corrects' an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn't matter if the evidence on the veteran's side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: "when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that 'the result would have been manifestly different.'" Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA's previous rationale for denying the claim.

Some Examples of CUE

Failure to Fully & Sympathetically Develop Claim

Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA's failure to "fully and sympathetically develop a veteran's claim to its optimum." Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must "give a sympathetic reading to the veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE.

For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin's disease, the VA has a duty to adjudicate a claim for Hodgkin's disease on the veteran's behalf (Hodgkin's disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin's disease would be CUE and the effective date for the Hodgkin's claim will date back to the date of the back injury claim.

38 CFR 3.156© Using Newly Added Service Records

You can use 38 CFR 3.156© to get an earlier effective date "if the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim." So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156©. An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156© to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion).

Where to File a CUE Claim:

Only a final decision (the decision was not appealed and the time to appeal has expired) by a VARO or the BVA can be appealed based on CUE. If a previous decision was appealed to the US Court of Appeals for Veterans Claims (CAVC), and the CAVC decided the issue, a CUE claim is not an option. The only way to get a CUE claim before the CAVC is for the veteran to timely appeal the BVA's denial of a CUE claim. Also, if the same issue (a request for a specific benefit) has been twice decided by the BVA, a CUE claim is not an option.

If the final decision was at the VARO, then file the CUE claim at the VARO that issued the final decision that allegedly contains the CUE. A denial of the CUE claim at the VARO can be appealed to the BVA.

If the final decision was at the BVA (the decision was not appealed to the CAVC and the time to appeal has expired), then file the CUE claim with the BVA. A denial of the CUE claim at the BVA can be appealed to the CAVC.

When you send in the CUE claim, be sure to request a hearing, either in DC or before a traveling Board at your local VARO. That way you can address all the issues thoroughly and more importantly be able to address any issues the Board members may have about your claim.

Conclusion

The key to a CUE claim is a thorough review of the legal reasons and facts in the record relied upon by the VARO or BVA. If the VA misapplied the law, state exactly how it did so. You must also thoroughly review the veteran's C-file to determine if there are any documents that support the original claim that were not reviewed by the VARO or BVA. If you find such documents, and review of the documents in the original claim would have resulted in a manifestly different outcome, then you have a good CUE claim. Remember to use the VA's duty to fully and sympathetically develop your claim when applicable.

[broncovet]

Everyone:

Attorney Forristal names two types of valid CUE's:

1. Failure to Fully & Sympathetically Develop Claim, citing Moody v. Principi

2. "Constructive Receipt" citing 38 CFR 3.156© Using Newly Added Service Records

If you have another "type" of valid CUE that you have won, or know of another type of CUE case that has been won (or lost!) please post it, as time after time Vets ask, "Is this CUE?"

Also would be helpfull if you went for a CUE and lost your case, POST THAT too, so that other Vets dont do the same. Forestil cited what is NOT CUE.

Carlie: I could not find the "Cue" forum you mentioned, please post a link..thanks.

[Berta]

The "Newly discovered service records" info from the VA is availabale here under a search and has helped many vets I am sure-to succeed in proper awards.

Also Moody- using Moody for a CUE should also take into consideration Szemraj V Principi,Roberson V Principi,Andrews V Shinseki and Comer V Peake- as well as numerous other cases that support this type of CUE.

The list of additional cases in the VBM regarding cases that reflect CUE potentials in the VBM is way too long to post here -

3.156 is so important- I will post the info here again-

(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(:D(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

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PART 3—ADJUDICATION

Section Contents

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

From 3.400 (q) 2006

AND

§ 3.156 New and material evidence.

<a href="http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff93ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#PartTop#PartTop"> top

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(:) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

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[broncovet]

Thanks Berta, your input is well appreciated and informative.

I would like to add attorney Katrina Eagles take on this:

Let the Appellate Process Begin!

Katrina J. Eagle, Attorney at Law

http://www.wildhaberlaw.com/

As a veteran's advocate, you may have helped a veteran-client complete the VA's application for compensation and, or pension (VA form 21-526). Some months later, the client calls to inform you that he or she has just received notice of a rating decision from the VA Regional Office denying the claim. The following materials will help guide you through the initial appeals process at the Board of Veterans' Appeals (aka "BVA" and, or "the Board") or at the U.S. Court of Appeals for Veterans Claims (aka "the Veterans Court" or "the CAVC").

........

(In the interest of space, portions of Ms. Eagle's advice has been removed).....

Analyzing a BVA Decision for the following types of substantive errors:

BVA findings of material fact that are "clearly erroneous":

Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied

Failure to comply with a BVA or CAVC remand order

Failure to reopen a claim supported by new and material evidence

Failure to consider a claim or legal theory reasonably raised by the record

Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law

BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record

The BVA's Failure to Explain Why It Rejected Positive Evidence Supporting the Claim

Keys to Filing an Appeal to the CAVC

The BVA decision must be "final", which means it must be a denial of a claim for benefits. If the BVA remands a claim for benefits to the VARO, then the BVA decision is not appealable to the Veterans Court.

What if it's a multi-issue BVA decision, with one issue is denied, but others are granted or remanded? Determine whether any of the issues are "inextricably intertwined". If so, then the Veterans Court may conclude, after the appeal is filed that the denied issue must be readjudicated with the remanded issue, thus relinquishing its jurisdiction to consider the denied claim. Note that the "inextricably intertwined" test is not particularly objective. Thus, if uncertain as to the reviewability of a partial remand, then advocate should file a protective Notice of Appeal (NOA) with the Veterans Court.

The NOA must be received or mailed using the U.S. Postal Service within 120 days of the date of the BVA decision. The 120-Day Clock starts ticking when:

1. BVA mails decision to last known address of veteran; and,

2. If veteran has representative, BVA sends copy to rep by any means so that reasonable to reach rep approximately same time as BVA decision reached veteran.

BVA has Presumption of Regularity on their side. How to overcome it: clear evidence to the contrary.

If you missed the 120-day deadline to file the NOA, then Equitable Tolling may be available to excuse the 120-day requirement. Consider whether the underlying facts of your situation are similar to cases in which the Federal Circuit excused the 120-day deadline:

1. The veteran was mislead or induced by the VA into missing the deadline for filing the NOA (see Jacquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002)); or,

2. The veteran actively pursued his judicial remedies but misfiled the pleading by sending it to the wrong location within the 120-day deadline for filing the NOA (see Jacquay); or,

3. The veteran's failure to file timely was the direct result of a physical or mental illness that prevented the claimant from engaging in rational thought or deliberate decision making or rendered the claimant incapable of handling his or her own affairs or unable to function in society (see Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005).

NOTE: Negligence will never be an acceptable reason for the 120-day requirement to be equitably tolled.

Pursuant to Rule 3© of the Veterans Court's Rules of Practice and Procedure, the following information must be included on a timely-filed NOA to be considered compliant:

1. The most recent name, address, and telephone number of the person(s) taking the appeal and the appropriate VA claims file number; and,

2. Reasonable identification of the actual Board decision being appealed and a statement that can be reasonably construed as seeking Court review of that Board decision; and,

3. If filed by a representative, other than one making a limited appearance, be accompanied by a notice of appearance and its attachments.

Keys to a Successful Appeal to the US CAVC

1. Know the organization of the Veterans Court:

The CAVC is the federal court that hears appeals from the BVA. The CAVC is "young" in that it is only 20 years old; it was created in 1988, when Congress passed Veterans' Judicial Review Act. The CAVC consists of seven judges who are appointed by the President to fifteen-year terms. Chief Judge William P. Greene, Jr. has sat at the helm of the CAVC since August 2005. The CAVC is an appellate court, so it hears no new testimony, conducts no trials, and considers no new evidence. Instead, it considers the BVA decision, the administrative record that was before the VA, and briefs of the parties before it.

2. The Veterans Court's Scope of Review

a. Regarding Applications of Law

Pursuant to 38 U.S.C. § 7261(a)(3), the Veterans Court has the authority to set aside pure issues of law as unlawful if the Court finds them to be, among other things, "arbitrary, capricious, [or] an abuse of discretion," "in violation of statutory right," "not in accordance with law," or "without observance of procedure required by law." See Horowitz v. Brown, 5 Vet.App. 217 (1993).

When reviewing pure issues of law, the Court reviews the VA's resolution of the issue de novo, with no deference to the BVA's view of the law.

b. Regarding Adverse BVA Findings of Fact

The Court reviews BVA findings of fact under a "clearly erroneous" standard; see 38 U.S.C. § 7261(a)(4).

c. Regarding Issues Applying Law to Fact

The Veterans Court will give some deference to BVA determinations involving mixed issues of fact and law. The Court will not put themselves in the position of the VA and decide what they would have done given same set of facts and law. Thus, here the Court applies a deferential standard of review, and will not set aside a BVA decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 38 U.S.C. § 7261(a)(3)(A)

d. Issues Beyond the Veterans Court's Power To Review

i. In most cases, the Veterans Court does not have the authority to resolve issues that were not resolved by the BVA prior to the appeal to the CAVC. This limit on its power to review is based on two principles:

1. The Veterans Court is an appellate court with limited jurisdiction. Pursuant to 38 U.S.C. § 7261(a)(3), the Court is prohibited from making factual findings in the first instance.

2. As a reviewing court, the Veterans Court's role is to determine the propriety of the action taken by the BVA, judged solely on bases invoked by the agency. This is a fundamental rule in administrative law.

ii. The Veterans Court may not review findings of fact made by the BVA that are favorable to the claimant. Similarly, recent case law seems to indicate that the Veterans Court must accept a BVA or RO ruling that resolves in the claimant's favor an issue that is partly factual and partly legal in nature. See, e.g., Williams v. Principi, 15 Vet. App. 189, 198 (2001) (holding that the Court could not review a favorable BVA ruling on the appropriate effective date for award of benefits).

iii. The Veterans Court is prohibited from reviewing the propriety of the schedule of ratings for disabilities as specified by Congress or as promulgated by the Secretary of the VA.

BUT, the Veterans Court does have authority to review the BVA's interpretation of the rating schedule. See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004)

iv. The CAVC does not have jurisdiction to review the VA Secretary's exercise of authority under 38 U.S.C. § 503(a) to grant equitable relief to claimants due to administrative error on the part of the VA. The distinction here is the Secretary's authority to grant relief based on principles of equity from his authority to award benefits based upon statutory entitlements.

Edited January 23, 2010 by broncovet