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Buck52

Understanding CUE Claim before you file.

Question

We have great information here on hadit about CUE  Claims and from late hadit member ''carlie cash'' was  wonderful with helping veterans with CUE Claims.

I found this Suffering &  Searching the internet  and maybe it will help some of you to understand a CUE Claim before you file one.

 but there is still a lot of reading to be done if your not familiar with  a CUE.

3.9. Clear And Unmistakable Error

 

A decision that has become final may not be reversed or revised in the absence of a showing of CUE.  38 U.S.C. § 7111(a).  CUE "is a very specific and rare kind of error . . . 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."  38 C.F.R. § 20.1403(a). 

The Court has no jurisdiction to consider a CUE claim it in the first instance.  38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran's Court can exercise jurisdiction over it"); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that "[t]he necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue of 'clear and unmistakable error'").VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a "clear and unmistakable error" (often called a "CUE"). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right.  A true CUE is not common and is a difficult claim to win.

A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary.  38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411.  A CUE motion is a collateral attack on a final VA regional office decision or Board decision.  Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). 

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

  • (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is "undebatable;" and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

Because a claim for CUE is a review of an already "closed claim" also known as "final decision claim", special rules apply:

  1. the "duty to assist" does not apply. This means that VA does not help a claimant with a CUE claim. 
  2. a CUE claim must contain specific and detailed statements regarding the error:
    1. how that error affected the decision, and
    2. why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example:  a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

Undebatable:

Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994). 

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;"

(2)   VA's failure to comply with the duty to assist;

(3)   a "disagreement as to how the facts were weighed;" and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 ("The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court's review is generally limited to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996);Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require "pleading with exactitude," it nevertheless must be plead with "some degree of specificity."  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude"); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) ("[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim."); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it"). 

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard).

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (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.
 (b) 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) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
 (c) 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. 504. 
 
Be Double Sure you know what your doing when you file a CUE Claim
 
hope this may help some of you
 
.................Buck
 
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Buck,
That is excellent info.

I am considering filing a CUE on a really old issue, but am still doing my research homework. When I am comfortable that I have an "air tight" CUE which meets all the strict CUE requirements, then I will ask others to review it for me to try to look for any leaks which might sink it.

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Vync

Not sure if you have filed your CUE?

I just wanted to let you know the VA is recently &have been using the RULE of Prejudicical Error

also known as the Harmless Error.

For Denials

so you may want to read up about it.

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The word "Undebatable" can blow about 90% of CUE claims out of the water.   What is an undebatable error?  Alex says it is an error that the human eye can see from the moon.  Before 1990 the VA did not even have to list the evidence they used to determine their decisions.  It is impossible to show that they did or did not consider evidence in your record that was used to make a rating decision before 1990.  That screws about 80% of Vietnam vets and it screwed me.  Reasonable minds are supposed to determine what is "undebatable".  First, there are no reasonable minds at the VA or BVA or Court of Vet. Affairs.   There are only regulations. Who determines which facts "Manifestly change the outcome of a rating decision"?  The VA, of course.    If the VA simply ignores an IMO/IME is that enough to be an undebatable error or to manifestly change the outcome of a decision?  Well, that is up to a group of judges most of whom were not even born when you were in rice paddies of Vietnam, mountains of Korea or sands of Gulf War.  How many of these judges were veterans and if they were vets?   The deck is stacked but it is the only one we have for now.   The VA deals off the bottom and you just have to play them.

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Buck

   I agree this is valuable info, but there is a point which I think the article you cited is "open to interpretation".   

    In other words, I dont think its always the case that  CUE IS A ONE SHOT THING.  One good example of this is that each RO, Board, or CAVC decision can have more than one CUE error.  My experience has been that each decision often has multiple errors.  

   Let's look at what you posted, above:

Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision. Id.

    Here is why I dispute the interpretation, I underlined above.  As Goodwin VS Peake explains, a claim consists of 5 elements, all of which can be appealed:

"In Dingess v. Nicholson, 19 Vet.App. 473 (2006), we further addressed the VCAA's substantive notice requirements. Particularly, we clarified the meaning of the term "claim" as consisting of five elements: (1) Claimant's status as a veteran; (2) existence of a current disability; (3) nexus between the disability and the veteran's service; (4) degree of disability; and (5) effective date of the disability. Id. at 484. W"

 

     Thus, its possible or even likely that a VEteran could attempt a "cue" on one of these 5 elements, be denied, and then file another CUE on one of the other 4 elements.    An example would be that a Veteran filed a CUE on the disability percentage, and it was found to be debatable and not in error.  However, this does not appear to preclude the Veteran from filing another cue disputing the effective date of the award, as this is a seperate "element" of the claim.   

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if VA denies all elements  but the veteran has one element he thinks he will win   its a 99%chance he won't win & say he does  how does this constitute a CUE? 

 (c) 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 unmistak

My CUE would need to fall under ''special rules apply''

Because a claim for CUE is a review of an already "closed claim" also known as "final decision claim", special rules apply:

....Buck

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