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pete992

A Little Help For Cue Claims

Question

*****************THIS IS POSTED TO PASS ON INFORMATION*******************

Clear and Unmistakable Error (CUE)

Introduction

This topic contains general information on CUE per 38 CFR 3.105(a), including

· the definition of the term clear and unmistakable error

· the provisions of 38 CFR 3.105(a)

· the determination requirements

· identifying a CUE

· handling allegations of CUE

· determining a case of CUE

· handling decisions made by Rating Veterans Service Representatives (RVSRs)

· applying the benefit-of-the-doubt rule

· revising prior decisions, and

· approval of ratings prepared under 38 CFR 3.101(a).

Change Date

December 29, 2007

a. Definition: Clear and Unmistakable Error

A clear and unmistakable error (CUE) is an error that is undebatable in that a reasonable mind can only conclude that the original decision was fatally flawed at the time it was made.

b. Provisions of 38 CFR 3.105(a)

38 CFR 3.105(a) provides that if clear and unmistakable error is established in a previous rating determination, then the

· prior decision is reversed or amended, and

· effect is the same as if the corrected decision had been made on the date of the reversed decision.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

c. Determination Requirements

A CUE determination must be based on the record and the law that existed at the time of the prior decision.

In a valid claim of CUE, the claimant must assert more than a disagreement as to how the facts were weighed or evaluated. There must have been an error in prior adjudication of the claim.

Example: A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.

d. Identifying a CUE

A CUE exists if

· there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

· Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

· VA overlooked material facts of record, or

· VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA's failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

· CUE, see 38 CFR 3.105(a)

· potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and

· CUEs based on VA's constructive notice of medical records, see

- VAOPGCPREC 12-95, and

- M21-1MR, Part III, Subpart iv, 1.3.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

e. Handling Allegations of CUE

Determine the precise nature of the claim when CUE is alleged. Regional offices (ROs) or the Board of Veterans' Appeals (BVA) will deny claims of CUE if the claimants do not specify the factual or legal errors at issue.

A claimant is not entitled to raise a particular claim of CUE again once there has been a final decision denying that same CUE claim.

If the CUE alleged is different from a CUE issue previously rejected, a rating is needed to determine whether or not a CUE was made on the new issue.

f. Determining a Case of CUE

When determining whether there is a CUE

· consider the

- law that existed at the time of the prior decision, and

- full record that was before the rating activity at the time of the prior decision, and

· determine whether the error would have by necessity changed the original rating decision.

Note: Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.

g. Handling Decisions Made by RVSRs

Decisions based on the judgment of the RVSR, such as the weight given to the evidence, cannot be reversed on the basis of CUE unless the decision is the result of misapplication of directives, laws, or regulations.

Continued on next page

7. Clear and Unmistakable Error (CUE), Continued

h. Applying the Benefit-of-the-Doubt Rule

The benefit-of-the doubt rule of 38 U.S.C. 5107(b) is not applicable to a CUE determination since

· an error either undebatably exists, or

· there was no error within the meaning of 38 CFR 3.105(a).

Reference: For more information on applying the benefit-of-the-doubt rule, see

· Russell v. Principi, 3 Vet. App. 310 (1992)

· 38 CFR 3.105(a), and

· 38 U.S.C. 5107(b).

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2 answers to this question

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Great info Pete.

The alleged CUE must manifestly alter the outcome.

Meaning their error cost the claimant CASH!

There are some great CUE claim awards here and a good read to see how the veteran proved their case.

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