Would this fly as a CUE Claim

[JKWilliamsSr]

In 2002 my back claim was denied by the VA.  The reason for the denial was that even though I was seen for back complaints (9 times)  There is no diagnosis of a chronic disability.  

Here is why I think this could very well be a CUE Claim.  The determination of no diagnosis of a chronic disability was may by someone unqualified (VARO or Reviewer) to make that determination.  There is no documentation from a single medical professional in relation to this claim concerning my medical history.   I have seen some case law on this such as Sokowski v. Derwinski that states "Remand was required of the veteran’s claim for service connection for actinic keratoses given that medical evidence contrary to the veteran’s medical evidence was lacking in the record and the BVA merely relied on its own unsubstantiated medical conclusions in denying the claim."  or Moore v. Derwinski that says "BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions."

There actually is a good bit of case law on unsubstantiated medical opinions by the VA and I wondered is my situation could apply. 

[JKWilliamsSr]

15 hours ago, pwrslm said:

Hi Berta,

This is where I got the info that CUE can only be submitted once. Clarification that if the CUE is denied and appealed, then the following applies:

 

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.

 

Can you explain?

From reading this I think the key here is the actual ruling.  I think where people get confused is they may forget this is still a judicial proceeding and standard procedures will apply.   In this case the key word is "dismissed with prejudice",  any case dismissed with prejudice cannot be refiled.  Now in some of the rulings I have seen where they found cause the dismiss the CUE they would do so "without prejudice" which allows you to refile.

Edited December 12, 2021 by JKWilliamsSr

[Berta]

You are referring to a Motion To Revise a BVA decision, by alleging CUE in a BVA decision. Most of the CUE claims we see here involve a CUE at the Regional Office Level.

"dismissed without prejudice" means just that- if the claimant shapes the CUE ,following the CUE criteria , they  can re -file the CUE claim at the VARO level ,if the RO made the CUE or file a Motion to Revise, at the BVA level based on a BVA decision.

Both Motion to Revise  and CUE on VARO decisions are explained in our CUE forum.

ORDER

The motion to revise a February 11, 2020, Board decision on the basis of clear and unmistakable error (CUE) is dismissed without prejudice to refiling.

https://www.va.gov/vetapp20/files8/20051364.txt

https://www.va.gov/vetapp21/files5/21030629.txt

In part:

"Each of the Damrel elements is therefore satisfied.  The June 1986 Board decision is therefore revised to reflect that the termination of the Veteran's permanent and total disability rating for pension purposes was not proper.  The CUE motion is granted."

https://www.va.gov/vetapp21/files5/21030629.txt

I suggest anyone seeking detainled info on CUE, searchable here, should acquire the Veterans Benefits Manual  by NVLSP and also study the many BVA decisions on CUE at the BVA web site.

The VBM is available at amazon.com at low prices for older used copies of it. CUE regulations have never changed since I purchased the first VBM in 1991. 

The first CUE I prepared was  in 1997 for my daughter, a veteran. All I had access to then was the VBM.The VA versed their decision in 3 weeks.

( A DEA CUE)

The BVA web site is free.

 

 

 

Edited December 13, 2021 by Berta
added more.

[pwrslm]

Final decision on CUE is final IAW 38 CFR 20.1409(c). 

"(c) Once there is a final decision on a motion under this subpart relating to a prior Board decision on an issue, that prior Board decision on that issue is no longer subject to revision on the grounds of clear and unmistakable error. Subsequent motions relating to that prior Board decision on that issue shall be dismissed with prejudice."

 

Motion to remand, and dismissals are not FINAL decisions. If a remand or dismissal occur, the vet is granted permission to fix the problem the board noted. If the decision is made, no further action on CUE will be dismissed with prejudice. 

Anytime a CUE is presented, and denied, it will go before the board if the Vet pursues it. The cases shown are examples where remanded/dismissed w/o prejudice were provided so the Vet can correct problems. If the Judge were a hard axx, he could just as well have denied the CUE, and dismissed with prejudice. The Vet would then be forced to the CAVC if it were to be pursued.

The point is that CUE should be set aside until the last straw. Mistakes can be brought to light without ever mentioning CUE, and preserve the issue that CUE provides. I have done this several times. The smart money is get a lawyer for CUE. 

[pwrslm]

Cook, 318 F.3d at 1339; Bissonnette, 18 Vet. App. at 112 (“In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.”); see also Hazan, supra. There are two primary exceptions to the rule of finality, the reopening of a claim upon the receipt of new and material evidence, and/or revision on the grounds of clear and unmistakable error (CUE). Cook, 318 F.3d at 1337 (discussing 38 U.S.C. §§ 5108, 5109A, 7111). Even these limited exceptions are strictly bound by the principles of finality and res judicata. Russell v. Principi, 3 Vet. App. 310, 315 (1992) (entering a “cautionary note” that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans’ benefits jurisprudence; and that once CUE is addressed it may not be raised again, it is res judicata). See also Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. at 315) (stating that “under the principle of res judicata, ‘[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again”).

 

https://www.va.gov/vetapp20/files11/20076092.txt

[broncovet]

Super interesting, Pwrslim.  

A least one Vets advocate interprets this as meaning "there can only be one CUE", such is not the case.  It means you cant raise CUE again, "on that issue", but there are multiple issues, and multiple CUE theories!  

If I have a dispute with a neighbor over our fence boundary, and the court adjudicates that issue, res judicata does not mean I cant sue him for money he owes me, for tearing down a fence I put up. 

We saw that with OJ Simpson.  He was found innocent in the law trial, but guilty of another (but related) money claim for damages.   

The VA really has not even defined what a "claim" is.  

If you file a claim for knee pain, PTSD, and hearing loss, do you have 3 claims, or 1 claim for 3 issues?  Im not sure anyone knows.  

VA seems to take advantage of that problem.  I filed a claim for hearing loss, tdiu, mdd.  They denied hearing loss.  So I appealed "hearing loss".  Did they deny the other issues (claims)?   Well, the Doctrine of deemed denial suggests they did, indeed deny all 3 claims (issues).  

The deemed denial issue, which appears to conflict with 38 CFR 3.103, which appears to guarantee the claimant is "entitled to a decision on his/her claim".  However, since nobody seems to know whether its an "issue" or a claim, its hard for Vets to hold VA accountable under 3.103.  

Quote

§ 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice -

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the elements described under paragraph (f) of this section, the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section, the right of representation, and the right, as well as the necessary procedures and time limits to initiate a higher-level review, supplemental claim, or appeal to the Board of Veterans' Appeals.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

(Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

(c) Submission of evidence -

(1) General rule. VA will include in the record, any evidence whether documentary, testimonial, or in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim, except as prescribed in paragraph (c)(2) of this section and § 3.2601(f).

(2) Treatment of evidence received after notice of a decision. The evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on the claim. The agency of original jurisdiction will not consider, or take any other action on evidence that is submitted by a claimant, associated with the claims file, or constructively received by VA as described in paragraph (c)(2)(iii) of this section, after notice of decision on a claim, and such evidence will not be considered part of the record at the time of any decision by the agency of original jurisdiction, except as described in § 3.156(c) and under the following circumstances:

(i) Receipt of a complete claim. The agency of original jurisdiction subsequently receives a complete application for a supplemental claim or initial claim; or

(ii) Board and higher-level review returns. A claim is pending readjudication after identification of a duty to assist error (which includes an error resulting from constructive receipt of evidence prior to the notice of decision), during a higher-level review or appeal to the Board of Veterans' Appeals. Those events reopen the record and any evidence previously submitted to the agency of original jurisdiction or associated with the claims file while the record was closed will become part of the evidentiary record to be considered upon readjudication.

(iii) Constructive receipt of VA treatment records. Records within the actual custody of the Veterans Health Administration are deemed constructively received by the Veterans Benefits Administration at the time when the Veterans Benefits Administration had knowledge of the existence of said records through information furnished by the claimant sufficient to locate those records (see 38 U.S.C. 5103A(c)).

(d) The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim. A hearing is not available in connection with a request for higher-level review under § 3.2601. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant's home having adjudicative functions, or videoconference capabilities, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Upon request, a claimant is entitled to a hearing in connection with proposed adverse actions before one or more VA employees having original determinative authority who did not participate in the proposed action. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.

(e) The right to representation. Subject to the provisions of §§ 14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting of relief. Written notification must include in the notice letter or enclosures or a combination thereof, all of the following elements:

(1) Identification of the issues adjudicated;

(2) A summary of the evidence considered;

(3) A summary of the laws and regulations applicable to the claim;

(4) A listing of any findings made by the adjudicator that are favorable to the claimant under § 3.104(c);

(5) For denied claims, identification of the element(s) required to grant the claim(s) that were not met;

(6) If applicable, identification of the criteria required to grant service connection or the next higher-level of compensation;

(7) An explanation of how to obtain or access evidence used in making the decision; and

(8) A summary of the applicable review options under § 3.2500 available for the claimant to seek further review of the decision.

 

[pwrslm]

The CUE is a distinct claim.

"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.""

I would not think that the separate claim that included TDIU and MDD  would be part of a CUE claim. Once the CUE is decided, it cannot be brought again, (unless you appeal the case to CAVC/SCOTUS).

 

I searched the BVA for "deemed denial" with zero results. 

CAVC :
A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. Adams v. Shinseki, 568 F.3d 956, 960 (Fed.Cir.2009); 38 C.F.R. § 3.160(c).

A claim will also remain pending if the VA failed to notify a veteran of the denial of his claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed.Cir.2002) (en banc).

It is established, however, that in certain circumstances, under the implicit denial rule, “a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision.” Adams, 568 F.3d at 961.

I would think that if a claim was made, and the issue of TDIU and MDD were raised in the claim along with hearing loss, that the VA would be bound to notify you of any adverse action IAW 3.103 cited above. 

Exception for deemed denial would need be closely related, like a case of hearing loss and tinnitus. The ruling on hearing loss could be denied and the tinnitus deemed denied.  Hearing and TDIU/MDD would not likely be associated like that IMO. MDD is a depressive/MH issue, while hearing loss would be a separate and distinct issue IMO. Hearing loss and TBI could be closely related though.

Edited December 20, 2021 by pwrslm