The Power of 38 CFR 4.6 regarding CUE

[Berta]

https://community.hadit.com/topic/60717-the-power-of-38-cfr-46/

 

[lee.edwards]

Greetings 

How many years back can you file a CUE? Can I file a CUE for gross mistakes made on a C&P decision in 2000? Or is it to late.

Best Regards 

Chiefhouse00 

[pacmanx1]

1 hour ago, lee.edwards said:

How many years back can you file a CUE? Can I file a CUE for gross mistakes made on a C&P decision in 2000? Or is it too late.

A CUE claim can be filed at any time and there is no time limit. A bad C & P exam is not grounds for a valid Cue claim. Keep in mind that Cue claims are very specific in nature. Depending on what evidence was in your file at the time of the original decision, you may not meet the CUE criteria, but you may be able to file a reopen claim and request the same benefits.

 

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 on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter 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. 501(a), 7111)

[57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019]

[broncovet]

My advice is to post on hadit (new topic) YOUR "CUE Theory".  In other words "why do you think the decision(s) is cue."  We may be able to help guide you in the right direction.  

[Dustoff1970]

VA definition of CUE is as follows:

38 CFR 3.105 Revision of Decision

"Definition of clear and unmistakable error. A 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. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied."

Very extremely difficult to win a true CUE claim.  Both VARO and BVA almost always deny these claims automatically due to huge amount of money that could be awarded to a vet for many years of backpay for CUE of a claim denied 20 or more years ago or even just 10 years Ago.

In 2001 I filed pro se a CUE denied BVA appeal with the U.S. CAVC court and in 2003 the court agreed with one of my 4 CUE contentions that the VARO committed error in not adjudicating me for a TDIU claim in 1987 but said the error was not CUE but rather a due process error and  the court's remand instructions told VARO to adjudicate me for TDIU as of 1998 which they did so in a round about way I won my court case. Very satisfying and a good learning valuable experience for me.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited April 18, 2022 by Dustoff 11

[Vync]

7 hours ago, pacmanx1 said:

A bad C & P exam is not grounds for a valid Cue claim.

It can be if the circumstances are right...

I filed CUE due on a bad C&P exam that was rubber stamped by the VARO as part of a supplemental claim for a heart attack. The VA NP from LHI literally opined on a completely different issue that I had not claimed. Of course, the VA slow-walked it and I had a conference with a DRO. 38 CFR 4.6 plus a number of other laws/regulations which were not followed, including M21-1 where the VARO is supposed to actually determine if the exam and medical opinion was adequate. The exam was adequate, but the opinion was not. The DRO said the C&P examiner failed to opine on the request they were provided and the VARO failed to even verify they opined on the correct condition. The denial was reversed and I was granted SC. Of course, I had a very strong IME from a specialist, too. Keep in mind that I was within the appeal window, too.., but failure to weigh all evidence of record and follow all applicable laws/regs/etc... got me