Clueless On Cue

[demeat]

I was trying to get an understanding on how CUE claims work. The information that I am reading is a bit overwhelming and confusing to me. I have a couple of questions to help me understand CUE.

1. How can I find out if this type of claim is best for me?

2. When can I file CUE?

3. If there a certain form that I would need to file?

I am not sure where to begin but any information would be grateful ?

[carlie]

I was trying to get an understanding on how CUE claims work. The information that I am reading is a bit overwhelming and confusing to me. I have a couple of questions to help me understand CUE.

1. How can I find out if this type of claim is best for me?

If it is very clear and undebatable that a law, reg, rule or M21-1MR instruction

was mis-applied to the detriment of the claimant.

2. When can I file CUE?

Anytime after a unappealed decision that has become final (by not submitting a NOD

within the one year time frame).

3. If there a certain form that I would need to file?

No special form to file it on - I suggest a 21-4138.

Also, the issue of CUE is submitted to the AOJ that made the alleged CUE

whether it be the VARO/BVA or CVAC.

In other words, if you feel your VARO made a CUE - that can't be submitted 1st time around

as an issue included at the BVA level as (even with a waiver) it will be remanded back to

the VARO for adjudicative action.

One of the more important things regarding CUE's is HOW IT IS FILED.

To merely to aver that CUE occurred is insufficient and there are so many situations that

a claimant feels is a CUE - BUT MANY ARE NOT.

IMO - the majority are just plain old poor decisions.

Remember the VBA decision makers own the scale on the assignment of the amount of

weight afforded to each piece of evidence.

For CUE issues most factors of DTA go right out the window, inadequate C&P's-

well throw that out the window too, lack of notification of exam's or decisions, etc...

"In asserting a claim of CUE, the claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).

The Court has further elaborated that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. See Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id."

You can do a BVA search for more CUE research, here's a link to start.

http://www.index.va....PP=10&UA=Search

JMHO - carlie

I am not sure where to begin but any information would be grateful ��