Jump to content
  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Available Subscriptions

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • Searches Community Forums, Blog and more

  • 0
carlie

Cue Can Be Claimed More Than Once

Question

CUE can be claimed more than once - BUT - Must be claimed, under completely different theory.

http://www.va.gov/vetapp11/Files2/1116866.txt

As a threshold matter, the Board sees that in a November 2002 Board decision, the Board previously denied the issue of whether there was CUE in the May 1998 rating decision that denied an effective date earlier than August 11, 1992 for the award of service connection for PTSD. However, this denial of CUE was based on a separate and distinct CUE theory from the one presently being argued. That is, the Veteran's earlier CUE motion was based on VA's alleged failure to fulfill the duty to assist, which is not the current theory of CUE being asserted. See e.g., earlier June 2000 CUE motion. Once there is a denial of a CUE claim, under the principle of res judicata, the same claim cannot be raised again. See Link v. West, 12 Vet. App. 39, 44 (1998); Russell v. Principi, 3 Vet. App. 310, 315 (1992) ("[o]nce there is a final decision on the issue of 'clear and unmistakable error' because the [agency of original jurisdiction] decision was not timely appealed, or because a [board] decision not to revise or amend was not appealed to this Court, or because this Court has rendered a decision on the issue in that particular case, that particular claim of 'clear and unmistakable error' may not be raised again."); see also Flash v. Brown, 8 Vet. App. 332, 341 (1995). However, the principle of res judicata bars refiling only as to that particular assertion of CUE; it does not prohibit a claimant from presenting another theory of CUE so long as it is separate and distinct. Flash, 8 Vet. App. at 341; Andre v. Principi, 301 F.3d. 1354, 1361 (Fed. Cir. 2002). In fact, in Hillyard v. Shinseki, No. 08-1733 (U.S. Vet. App. Mar. 29, 2011), the Court recently reiterated VA's position that the number of motions to revise based on clear and unmistakable error that a claimant may bring against a RO decision (as opposed to a Board decision), is unlimited, so long as each new challenge involves a distinct theory of clear and unmistakable error. Therefore, the Veteran is not barred in the present case from alleging a new theory of CUE since it is separate and distinct from the previous theory.

Share this post


Link to post
Share on other sites

1 answer to this question

Recommended Posts

GOOD stuff Carlie!!!!!

When the BVA states ,in a CUE Motion denial, that the claim is dismissed without prejudice, it means if the claim is reworked

as to a new theory of legal error,over an error that impacted negatively on the claimant, a new CUE claim can be filed.

Share this post


Link to post
Share on other sites

Ad

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 account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • SHOW YOUR SUPPORT: Ad Free Subscriptions to the Forum available
      Ad free subscriptions are available for the forum. Subscriptions give you the forums ad free and help support the forum and site. Monthly $5 Annually $50 https://community.hadit.com/subscriptions/

      Every bit helps - Thank you.

       
      • 0 replies
    • Choosing a VA Disability Attorney Means Learning What Questions to Ask
      Choosing a VA Disability Attorney Means Learning What Questions to Ask. Chris Attig - Veterans Law Blog 

      <br style="color:#000000; text-align:start">How to Hire an Attorney For Your VA Claim or Appeal Free Guidebook available on the Veterans Law Blog

      I got an email the other day from a Veteran.  It had 2 or 3 sentences about his claim, and then closed at the end: “Please call me. So-and-so told me you were the best and I want your help.”

      While I appreciate the compliments, I shudder a little at emails like this.  For 2 reasons.

      First, I get a lot of emails like this.  And while I diligently represent my clients – I often tell them we will pursue their claim until we have no more appeals or until we win – I am most assuredly not the best.

      There are a LOT of damn good VA Disability attorneys out there.  (Most, if not all, of the best are members of the National Organization of Veterans Advocates…read about one of them, here)

      Second, I don’t want Veterans to choose their attorney based on who their friend thought was the best.  I want Veterans to choose the VA Disability attorney who is BEST for their case.

      In some situations, that may be the Attig Law Firm.

      But it may also be be Hill and Ponton, or Chisholm-Kilpatrick, or Bergman Moore.  Or any one of the dozens of other attorneys who have made the representation of Veterans their professional life’s work.

      There are hundreds of attorneys that are out there representing Veterans, and I’m here to tell you that who is best for your friend’s case may not be the best for your case.

      How do you Find the Best VA Disability Attorney for your Claim?

      First, you have to answer the question: do you NEED an attorney?

      Some of you don’t...
      • 1 reply
    • VA Emergency Medical Care
      VA Emergency Medical Care
      • 3 replies
    • Veterans Appeals Improvement and Modernization Act
      Veterans Appeals Improvement and Modernization Act
      • 1 reply
    • Thanks Berta for your help. I did receive my 100% today for my IU claim on 6/20/2018. It only took 64 days to complete and it is p&t. Thanks for your words of wisdom. 
×

Important Information

{terms] and Guidelines