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Cue Can Be Claimed More Than Once


carlie

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.

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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.

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