Clear And Unmistakable Error

[foreveryoung]

HI

Can anyone tell me if this may meet the CUE requirements.

I had a claim reviewed and denied by the BVA in 1992 and left it drop.

After reviewing my medical records, which I didn't have at my hearing, I noticed some statements that were not referenced in the VBA decesion. I believe these statements when read tell the story. Anyway about 2-3 years ago I had a C&P exam by a VA Doctor. After showing the Doctor these same records, he concluded that I have been right all along and the VA did grant service connection. I fogot to mention that I also had my family Doctor review my reecords prior the the C&P exam and I showed the VA Doctor and he agreed.

So does this meet the burden, that when called to the attention of later reviewers compels the conclustion, to which reasonable minds could not differ, and the result would have manifestly different but for the error?

Thanks, Dave

[carlie]

Berta,

You sure know much more than I about VA Claims and please feel free to correct me if I didn't understand the above post concerning CUE.

In reading the following rule I don't see how Duty to Assist would be helpful in

getting a CUE granted.

Please help me understand because now I'am confused again, CUE does this to me alot.

Best regards,

carlie

Rule 1403 of the Board's Rules of Practice, found at 38

C.F.R. § 20.1403, defines what does and does not constitute

CUE. The regulation provides as follows:

(a) General. 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

statutory and regulatory provisions extant

at the time were incorrectly applied.

( Record to be reviewed.--(1) General.

Review for clear and unmistakable error in

a prior Board decision must be based on

the record and the law that existed when

that decision was made.

(2) [Omitted]

© Errors that constitute clear and

unmistakable error. To warrant revision

of a Board decision on the grounds of

clear and unmistakable error, there must

have been an error in the Board's

adjudication of the appeal which, had it

not been made, would have manifestly

changed the outcome when it was made. If

it is not absolutely clear that a

different result would have ensued, the

error complained of cannot be clear and

unmistakable.

(d) Examples of situations that are not

clear and unmistakable error.--

(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.

(Authority: 38 U.S.C.A. § 501(a), 7111).

The regulatory definition of CUE was based on prior rulings

of the United States Court of Appeals for Veterans Claims

(previously known as the United States Court of Veterans

Appeals) (Court), and Congress intended that the VA adopt the

Court's interpretation of the term "clear and unmistakable

error." Therefore, the jurisprudence that has evolved from

years of court decisions is applicable in the present

adjudication.

The Court has consistently stressed the rigorous nature of

the concept of CUE, stating that "[c]lear and unmistakable

error is an administrative failure to apply the correct

statutory and regulatory provisions to the correct and

relevant facts; it is not mere misinterpretation of facts."

Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). CUE

denotes "errors that are undebatable, so that it can be said

that reasonable minds could only conclude that the original

decision was fatally flawed at the time it was made."

Russell v. Principi, 3 Vet.App. 310, 313 (1992). "It must

always be remembered that [CUE] is a very specific and rare

kind of 'error.'" Fugo v. Brown, 6 Vet.App. 40, 43 (1993).

A disagreement with how the Board evaluated the facts is

inadequate to raise the claim of CUE. Luallen v. Brown, 8

Vet.App. 92, 95 (1995).

A finding of CUE "must be based on the record and the law

that existed at the time of the prior . . . decision."

Russell v. Derwinski, 3 Vet. App. 310, 313-14 (1992).

Subsequently developed evidence may not be considered in

determining whether error existed in the prior decision.

Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). The mere

misinterpretation of facts does not constitute clear and

unmistakable error. Thompson v. Derwinski, 1 Vet. App. 251,

253 (1991). Moreover, the error must be one which would have

manifestly changed the outcome at the time that it was made.

Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). "It is a

kind of error, of fact or of law, that when called to the

attention of later reviewers, compels the conclusion, to

which reasonable minds cannot differ, that the results would

have been manifestly different but for the error." Fugo v.

Brown, 6 Vet. App. 40, 43 (1993).

[Jay Johnson]

I'm also not completely understanding this CUE thing. It has been said that the decision must be final, but I can't find this anywhere in the regulations, nor do I completely understand what is being refered to as "final"? We recently recieved confirmation of our NOD in my wife's case and I will likely ask for a DRO before heading to the board (hoping they fix their obvious mistakes rather then allow the board to do it for them). I have 2 CUEs written and ready to go, but I'm not exactly sure when I should file them? Can I file the CUEs and still go ahead with the DRO? I can't find anything in the regs pertaining to "when" to file CUEs.... I only see regs, as posted above by carlie, that show what constitutes a CUE.

Anyway, here are the CUEs I have ready to go....any input would be appreciated -

>>>To whom it may concern,

I am filing a CUE on the basis that the RO inappropriately applied the regulations in regards to reducing my SMC (A&A) to housebound, in the rating’s decision dated June 11, 2005. The basis for this CUE are as follows:

1) The reasons given for reduction of A&A(dated 06/11/2005…attached) were “You are not in need of aid and attendance of another person to protect yourself from hazards or dangers incident in daily environment. The allegation that your husband must watch over you to keep you from self-harm is not a hazard that is incidental to daily living environment. Clearly your choice to remain in bed and spend much of your day sleeping is not the result of service connected physical or mental impairment”. The above reasons are not “new and material evidence” and do not meet the requirements for a ratings reduction. The RO cannot summarily dismiss another region’s decision as per 3.104 and 3.105 (difference of opinion).

The Prior rating’s decision (from Philadelphia RO dated April 26, 2004…attached) made it clear that A&A was warranted based on “being incapable of being alone at home, as you may be a danger to yourself and/or others.” This decision may only be reviewed at a higher adjudicative body (3.104, 3.105).

2) The rater, in this case, went against the precedent set forth by the BVA (BVA9401373, docket no. 91-46 743….see attached). In this decision the BVA made it quite clear that A&A is warranted in situations where a veteran is a severe threat to him or herself based on suicidal/homicidal ideation and allowed for care to be provided by the spouse. The rater must apply precedent to this case and does not have the authority to lower a rating based on his or her own interpretation of the regulation.

3) All of the evidence of record shows a continued (and increased) need for A&A based on the criteria set forth in the Philadelphia decision dated April 26, 2004. The letter dated April 7, 2005 from Dr. Domash clearly shows a continued need for A&A based on suicidal ideation (attached). The RO also has all of the documents from a recent hospital stay at SW Washington Medical Center (April 21, 2005 – May 2, 2005), in which several suicide attempts were recorded and an admitting GAF of 10(attached) was given (“Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.”). Also, a current GAF of 15 was given by Dr. Domash (“Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).”). There is no evidence of any material improvement in the veteran's ability to care for herself and keep herself safe.

It is quite clear that the regulations, 3.104 and 3.105, were violated in this decision and that precedent was not followed. It is also clear that the rater used opinion rather then medical facts in coming to his or her decision. All of this evidence was presented to the RO and no reasonable mind could argue that this decision was erroneous and should be overturned. Also, this change will result in increased benefits for the veteran (from housebound to A&A) and, therefore, falls under the guidelines of “clear and unmistakable error”.<<<

And -

>>>To whom it may concern,

I am filing a CUE based on the improper scheduling of a future exam for a permanent and total disability. My reasons for this CUE are as follows:

1) The regulations for reexaminations are quite clear (3.327): “2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static; (iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement”. The veteran was found to be permanently and totally disabled in a Philadelphia decision, dated April 26, 2004, and again by this RO on July 15, 2005. A decision which is static (permanent) and is deemed that there is no “reasonable likelihood” of improvement cannot have a future exam scheduled.

2) The BVA has consistently upheld that no future exams will be scheduled for a condition deemed to be “permanent” in nature. I am attaching a BVA decision which confirms this, representing just one example of many from the BVA (Attaching a small portion of BVA9401373…the entire decision is on file).

3) The Philadelphia decision, dated April 26, 2004, followed VA regulations and did not schedule a future exam for a condition that was “permanent and total”. I am attaching the decision.

The rater’s decision to schedule a future exam for a permanent condition violates VA regulation (3.327) and should be overturned. All of the evidence of record shows an increased level of disability over the last three years and clearly shows a static condition. All medical opinions state that the condition is not likely to improve and, therefore, the condition is permanent. A permanent disorder is one that is likely to never improve to a point of employability and scheduling future exams based on a rater’s “hope for improvement” is unprofessional and illegal (attaching this quote as it affirms the rater’s opinion in this matter and the lack of medical evidence to back it up).<<<<

Some of the "bold" and "underlined" type did not show in my cut and paste, but are on the documents in question. I would like to get these into the RO sooner then later, but I don't quite understand when I should file them...any help would be greatly appreciated.

Thanks,

Jay

[wallyg]

Jay,

I don't think that either one of your proposals meets the criteria for a cue. For a start, get rid of the word 'inappropriately' at the start of the first one. The OGC has clearly stated that inappropriate decsions do NOT meet the criteria of a cue.

The important thing to understand is that a CUE is a 'one shot' attempt at correction, and should be the very LAST thing that you try, after everything else has failed.

Once you have filed a cue, you have basically closed all other doors to solving your problem. This sounds like the simplest way to go to solve many rejections, but believe me, the VA loves to see inexperienced claimants filing CUEs, because they are usually easy to shoot down, and can close the door on any other attempts at solution.

I hate to see all the talk about CUEs here, because they will rarely be successful, and often cause more problems.

A claim is considered FINAL, when all the normal remedies have been exhausted, or time limits have expired. Thus if you haven't been to the BVA and COVA, and the time limits since the last SSSSOC have not yet expired, the claim is not yet FINAL.

DO NOT FILE A CUE, UNTIL EVERY OTHER ALTERNATIVE HAS FAILED!!!

Edited September 27, 2005 by wallyg

[Jay Johnson]

Jay,

I don't think that either one of your proposals meets the criteria for a cue. For a start, get rid of the word 'inappropriately' at the start of the first one. The OGC has clearly stated that inappropriate decsions do NOT meet the criteria of a cue.

The important thing to understand is that a CUE is a 'one shot' attempt at correction, and should be the very LAST thing that you try, after everything else has failed.

Once you have filed a cue, you have basically closed all other doors to solving your problem. This sounds like the simplest way to go to solve many rejections, but believe me, the VA loves to see inexperienced claimants filing CUEs, because they are usually easy to shoot down, and can close the door on any other attempts at solution.

I hate to see all the talk about CUEs here, because they will rarely be successful, and often cause more problems.

A claim is considered FINAL, when all the normal remedies have been exhausted, or time limits have expired. Thus if you haven't been to the BVA and COVA, and the time limits since the last SSSSOC have not yet expired, the claim is not yet FINAL.

DO NOT FILE A CUE, UNTIL EVERY OTHER ALTERNATIVE HAS FAILED!!!

That's what I keep hearing, yet there is nothing in the regulations that seem to show this level of "finality"? Also, I'm not sure what you mean by "not meeting the criteria for CUE"....they clearly broke two standing regulations. If you can't call CUE on regulation violations then what can you call CUE on? In the first CUE the seattle RO stripped my wife of A&A based solely on the fact that they disagreed with her having it in the first place, which violates 3.105 directly...along with the fact that the rater's interpretation of the regulation (regarding A&A) if flatly wrong and I provided a BVA case that clearly points that out. Secondly, the VA cannot schedule future examines for vets that are P&T...not only does it defy common sense, but it clearly defies the regs for "reexaminations".

Honestly, if I can't call CUE on this then I might as well bend over and take the crappy decision they've given me cause there is no hope. They have scehduled my wife for a C&P in 14 mnths and she WILL NOT go to it and this matter will not be resolved in 14 mnths; therefore, she will be 10% disabled come this time next year, which means Ill have to commit her permanently....xxxx life sucks!@

[Tbird]

did a search on the forum archive for cue here's the link http://www.google.com/custom?hl=en&lr=&ie=...teransforum.com

HI

Can anyone tell me if this may meet the CUE requirements.

I had a claim reviewed and denied by the BVA in 1992 and left it drop.

After reviewing my medical records, which I didn't have at my hearing, I noticed some statements that were not referenced in the VBA decesion. I believe these statements when read tell the story. Anyway about 2-3 years ago I had a C&P exam by a VA Doctor. After showing the Doctor these same records, he concluded that I have been right all along and the VA did grant service connection. I fogot to mention that I also had my family Doctor review my reecords prior the the C&P exam and I showed the VA Doctor and he agreed.

So does this meet the burden, that when called to the attention of later reviewers compels the conclustion, to which reasonable minds could not differ, and the result would have manifestly different but for the error?

Thanks, Dave

[Jay Johnson]

did a search on the forum archive for cue here's the link http://www.google.com/custom?hl=en&lr=&ie=...teransforum.com

Thanks for the link Tbird. This is the first i've heard of this "Grave Procedural Error", should I frame the above arguments as Grave Procedural Error and allow the RO to decide whether or not it was CUE? Does this "Grave Procedural Error" constitute the use of a CUE so that I can't CUE later down the road? I know what they did/are doing is wrong and the BVA isn't going to let it stand, but these people seem very stubborn in their opinion and I'm not sure if allowing them to muddle with it longer and/or asking for DRO will fix it sooner rather then later, but I also know that this case is very clear cut and they have to know that the BVA is going to reverse their decision (talked to an 800 # rep the other day who was absolutely shocked that the RO would give P&T and give a future exam....I get this reaction a lot). Any input would be appreciated.

P.S. - I'm sorry for the rather harsh post last night....I am at my wit's end with this whole situation, not to mention the fact that I've had to give up my entire life to take care of my wife and the world seems to want to make spit on me every chance they get. I didn't plan on being a college graduate sitting at home 24/hrs a day at 29 taking care of a disabled spouse....this isn't what you dream about doing in life when you're a kid:-(