Ask Your VA Claims Questions | Read Current Posts
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
- 0
ptsd All About "cue" Claims
Rate this question
-
Similar Content
-
- 0 comments
- 943 views
-
- 0 replies
- 330 views
-
- 3 answers
- 313 views
-
- 0 comments
- 1,077 views
-
- 0 replies
- 353 views
-
Question
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.
Link to comment
Share on other sites
Top Posters For This Question
3
1
1
1
Popular Days
Jan 23
6
Top Posters For This Question
broncovet 3 posts
carlie 1 post
Berta 1 post
jerrbilly 1 post
Popular Days
Jan 23 2010
6 posts
5 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now