CUE Decision

[Jangs1963]

So, I checked VA.gov to see the status of my CUE.  It indicated "appeal period pending final release of atty fees." (it gave the amount) and it was listed under "claim for comp and pen updated on 07/22."  So underneath that one is another  "claim for compensation" updated 07/22, when I view that, it doesn't indicate a decision was made or that a decision was sent.  When I contacted the 800# they said they are sending a packet to me.  But as I said, VA.gov does not show that it is complete.  In fact the date they have now under estimated completion dat,  is 12/2020.  Has this happened to anyone here on a CUE claim? I  mean if they are finalizing payment of my atty's fees, wouldn't that mean a decision has been made? I would appreciate anyone giving input. 

[Berta]

If you had an attorney representing you, and their representation was for solely for the CUE claim, it sounds to me like the CUE succeeded, because -otherwise what claim would they be basing the fee amount on?

Did the attorney rep you on any other issue, instead of the CUE claim?

[Berta]

I briefly looked over your profile page- because I was sure that you seemed to have a VERY good CUE- I do not trust my memory on each member's situation.

Does the attorney fee ( 20 % I assume) times 5,if the fee is posted at the VA.gov site ,compare to the retro you could expect from the CUE?

If not from the other claim, if same representation?

[Jangs1963]

This was the only claim I got an attorney for. It seems to me they awarded me 10%. My original claim was from 1999. I was hoping on 20%, but 10% is still a big win for me. 

[Berta]

Yes! and you can always appeal the rating if you feel it is wrong.

I am hoping you get the actual decision soon!

Jangs- we have a new member asking what form to file CUE on- did you file after the forms changed some years ago and, if so, what form did you use for the CUE?

I thought my pending CUEs had been grandfathered in , they were what I always filed, just a letter stating that is was a CUE claim, etc etc, but, since I am a widow, I had to use a different form,which the VA sent me, for the two pending CUE claims. 

I assume our new member Gail is a veteran, and would need to use the same form you did.

Thanks, and Congratulations!!!!!!   Persistence and Hard work pays off.

[Jangs1963]

When my atty initially filed the CUE he did it by a Motion (that was in 2019). Apparently an attorneys motion means nothing. That Motion sat in the file and was not even looked at. When I called the 800# They insisted it be done on Form21-526EZ. Once I completed that and attached everything, things started to move. Not quickly but it moved. Berta, you were my biggest help. You outlined my letter. If I had to do it all again, (Which I will be), I wouldn’t have hired an attorney. Once this CUE is completed, I will be filing one more CUE. I wish Gail all the best. When they were reviewing my CUE, I had to write a summary of the motor vehicle accident which was in the line of duty.  They must have compared it to the information they requested from the JSRRC which is an official military database which verifies the stressors. My stressor was not combat. 

[Berta]

Unfortunately a past member here was telling vets to file a Motion to revise on RO decisions, that they felt contained a valid CUE. A vet lawyer should have known better.

That type of Motion is only appropriate for a CUE being filed on a BVA decision.

I am glad I helped in some way.

[Buck52]

''Unfortunately a past member here was telling vets to file a Motion to revise on RO decisions, that they felt contained a valid CUE. A vet lawyer should have known better.''

MsBerta

With all due respect

I have always thought a veteran can appeal a Motion to Revise that they felt contained a valid CUE  as many times has he needs to  on a R.O. Decision  but only has one shot at the Motion to Revise on a BVA Decision?

A motion for revision based on CUE can be a strategic part of any plan for obtaining the maximum VA disability compensation benefits for which you qualify. Both Regional Office (RO) and Board of Veterans Appeals (BVA) decisions are subject to revision based on these motions. However, one important distinction is that while you can file multiple motions for revision based on CUE for a single RO decision, only one motion for revision based on CUE may be filed for a BVA decision. It is crucial to consult with a VA disability attorney prior to filing a motion for revision based on CUE in a BVA decision.

Note* ''based on the evidence at the time the error was made''

if denied at the BVA then veteran can take it to the CAVC (Court Appeal Veterans Court)

Maybe this is what that past  certain member was trying to convey?

my source: Vet Law

Edited July 25, 2020 by Buck52 (see edit history)

[Berta]

That is not correct- even lawyers get this wrong sometimes:

This site has good info-

https://www.hillandponton.com/appealing-a-bva-decision-clear-and-unmistakable-error/

A motion to revise can only be filed on a BVA decision. The RO will not accept or act on a Motion to Revise.

There is no such thing as CUE being a one shot deal- This all has been discussed ad finitum in our CUE forum.

Some Vets reps and even lawyers have used the one shot deal mantra, for years,  because it reveals they know nothing about CUE.

I just saw the Motion to revise with incorrect advice at a web site I never heard of----best to go to the BVA:

The BVA has 78,907 decisions that pop up for Motion to Revise- 

it can help you understand basic VA case law regarding CUE Motion to Revise on a BVA decision..

https://www.index.va.gov/search/va/bva_search.jsp?QT=Motion+to+Revise&EW=&AT=&ET=&RPP=10&DB=2020&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

[Berta]

Here is the first decision in the BVA link:

"ORDER The motion to revise based on clear and unmistakable error (CUE) a May 2018 Board decision that denied an increased rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to October 13, 2017, and thereafter, in excess of 70 percent is dismissed without prejudice to refiling."

I dont even have to read it all- because your question are answered in the above Order.

The Motion to revise was based on a BVA  decision.

The next sentence dismisses the CUE regarding the rating, without prejudice.

"The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged clear and unmistakable error, or 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. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy this requirement. Motions that fail to comply with these requirements shall be dismissed without prejudice to refiling. See 38 C.F.R. § 20.1404 (b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). Under 38 C.F.R. § 20.1409 (c), the Board’s regulations specify that a moving party has only one opportunity to challenge a Board decision based on CUE. A claimant is allowed only one request for revision based on CUE for each Board decision, even if a claimant’s second request for revision based on CUE attempts to raise a different theory of CUE. There is a difference between a Board decision and RO decisions with respect to CUE claims. The regulations governing CUE challenges to finality of RO decisions do not limit the number of times a claimant may raise a CUE claim as to a specific RO decision. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105; Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). In contrast, the regulation limits each claimant to one challenge to the finality of each Board decision. Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board’s Rules of Practice. 38 C.F.R. Part 20. CUE 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. Review for CUE in a prior Board decision must be based on the record and the law that existed when that decision was made. To warrant revision of a Board decision on the grounds of CUE, 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. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404.

https://www.va.gov/vetapp19/files10/19177805.txt

As you see a CUE filed on a RO decision if different than a Motion to Revise  filed on a BVA decision.

( PS I am not any  relation to the vet in Simmons V. Principi case cited above.)

[Berta]

You stated: "  but only has one shot at the Motion to Revise on a BVA Decision?" That is correct but a veteran whose Motion for Revision is denied, might be able to re work the CUE enough at the regional level, to succeed there.

As this case states:

 In contrast, the regulation limits each claimant to one challenge to the finality of each Board decision. Hillyard v. Shinseki, 695 F.3d 1257, 1258 (2012).

If a veteran has more than one BVA decision,n separate issues,  they can again file the Motion for CUE if they feel another BVA decision contains a BVA CUE. They just cannot file another Motion to Revise at the BVA on the same decision the BVA denied the MTR on, in the first place.

A veteran can appeal the BVA denial of a denial of a Motion to Revise CUE regarding a BVA decision to the US CAVC.

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No reply thing came up, I couldnt reply again---- so I am putting this here-

I see that you changed the first post here Buck---with an edit- but I replied to the pre edited post-still in my email .....

In any event, all of the BVA CUE regulations are in the BVA decision I posted and the CUE regulations for RO CUEs are here in our CUE forum.

Edited July 25, 2020 by Berta
Board would not let me reply ???had to edit (see edit history)

[Berta]

I feel anyone explaining VA case law (such as Vet Law) should give citations and direct the veteran to the specific regulations, etc, that support their advice.

I think this same Vet Law advice regarding CUE came up here before.

Unlike many  vet 'help' sites on the net, I always give links to support what I say.

 

[Buck52]

''Berta Quoted

''

''If a veteran has more than one BVA decision,n separate issues,  they can again file the Motion for CUE if they feel another BVA decision contains a BVA CUE. They just cannot file another Motion to Revise at the BVA on the same decision the BVA denied the MTR on, in the first place.

A veteran can appeal the BVA denial of a denial of a Motion to Revise CUE regarding a BVA decision to the US CAVC.''

Roger That.