Some facts and reference on CUE (CLEAR UNMISTAKABLE ERROR)

[broncovet]

Let's begin with the regulation on CUE: 

https://www.law.cornell.edu/cfr/text/38/20.1403#:~:text=Clear and unmistakable error is,different but for the error.

The Cue error, therefore, needs to be all these things:

1.  Undebatable.

2.  Outcome determinative.  

3.  Based on the records VA has in their possession at the time of the decision.  If VA was/is missing critical evidence, consider filing a 38 CFR 3.156 (new evidence) instead of CUE. 

4.  May be filed at any time, such as after the one year appeal period expired.  

___________________________________________

What CUE is NOT:

1. Cue can not be due to the fault of VA failing its "duty to assist".  

2.  A disagreement about how the evidence was evaluated is not CUE.  

3.  An error which "does not change the outcome".  As an example if the VA mis spelled your name, that is unlikely to change the outcome.  

NOTE:  The regulation "does not" support the "only one cue" theory.  Indeed, each decision could have more than one issue, and more than one Clear Error.  

    However, let's say you file CUE as you allege VA violated 38 CFR 4.6 and did not properly rate your PTSD.  

In this example, lets say VA denies your CUE claim.  It makes no sense to refile the claim with the same "entitlement theory".  Instead, if you dispute VA's denial of the outcome of your CUE claim, you may appeal that decision.  Or, you could locate still another VA error, and refile CUE under a new cue hypothesis.  For this reason, refiling the same CUE error, on the same decision, is unlikely to suceed, meaning there is some good reasoning in the "one pony" theory.  You should carefully consider your CUE error, ensuring that "you get it right the first time".  Overcoming an improperly filed CUE, could well be more difficult than overcoming an improperly filed appeal, due to the fact that "the benefit of the doubt" is not supported on CUE claims.  

    The "benefit of the doubt" is the standard of review, in "regular" claims (that is, nonCUE claims which are NOT at the CAVC review level or above).   The standard of review in Cue is increased form "benefit of the doubt" to a much higher bar to jump over, "undebatable".  It does not always make sense to "give up" the benefit of the doubt by filing CUE when a regular supplemental claim, or other appeal (such as HLR or BVA)  includes the benefit of the doubt, where a Cue claim does not.  

___________________________________________

Not all of VA's errors are CUE.  They can be error, but may or may not meet the criteria, above.  

Here are a few examples of CUE:

Some other great sources on CUE:

1.  Your attorney

2.  The Veterans Benefit Manual published by Lexis Nexus.  https://store.lexisnexis.com/categories/content-type/area-of-practice-153/veterans-benefits-manual-skuusSku12734

3.  If you can not afford a Veterans benefit Manual, and choose not to be represented by an attorney, you can research your own related case law, here:

http://search.uscourts.cavc.gov/

NOTE:  The results of the CAVC case law are in 3 categories:

1.  Single Judge.  A single judge decision is non precedential, and you should use caution in citing a single judge decision to support your claim.  

2.  "Panel" decision.  These are decided by a "panel" of judges, and are considered precedent setting, binding on other judges.  

3.  En Banc.  An en banc decision is where "all" of the available judges come to a consensus opinion, and is also binding on other judges.  

You can also review BVA appeals decisions.  While the BVA decisions in case "A" are not binding on case "B", they are useful especially if you are looking for precedential decisions because BVA decision are required to give a reasons and bases for decision.  In the reasons and bases, the Board often cites precedential case law, from CAVC panel decisions, CAVC en banc decisions, and, of course, Federal Circuit decisions and the US Supreme court decisions.  

Edited October 23, 2023 by broncovet

[broncovet]

Jfrei

    Its a tough decision.  When I make a decision, my default is to "make the choice that leaves the most options for the future".  That is, I dont like to burn down bridges, because, I know someone may want to go across the bridge if I burn it down.  

    With that, here is my advice.  It sounds like you were denied in 2010, 2020, and 2023.  So, my first suggestion is to file an appeal to the 2023 denial, as its in the one year appeal period.  But, do it carefully and use each of these decision's reasons and bases, to craft my NOD.  Did they deny you for the same reason?  Possible, but not likely.  

    When I appeal, I do my best to refute the VARO's reasons and bases. 

Quote

Example:  While the Sept. 1 (date) VARO decision stated, "there was no evidence that the Veterans condition was related to military service".  However, Dr. Johnson, in an exam dated March 1, 2010, stated "the VEterans condition was at least as likely as not due to an event in military service".  The evidence does not support the Rating specialist denial.     

    Cite EVIDENCE not your opinion.  My opinion means nothing, but Dr. Johnson's nexus is relevant!  Then, include Dr. Johnson's exam in your appeal, and add that, "if" Dr. Johnson's March 2010 exam was unavailable at the time of the rating decision, please consider this appeal a request to reopen with new and relevant evidence under 38 cfr 3.156 "as well" as an appeal.  (Did you see I didnt not burn down the bridge of resubmission under 3.156, but did not withdraw the appeal either.  You probably want your benefits and dont care whether they view it as 3.156 resubmission or Supplemental claim with new evidnece...you get a great decision and you are good to go!). 

    You can file cue at any time, but your appeal is limited to a year.  

    I would have to know much more details to know if a cue was relevant or not.  One thing IDK is whether or not Dr. Johnsons Sept 10 exam, in this example, was in the evidence section of the decision.  

[Lemuel]

Consider 38 CFR 20.1000.  Does it apply?

§ 20.1000 Rule 1000. Vacating a decision.

An appellate decision may be vacated by the Board of Veterans' Appeals at any time upon request of the appellant or his or her representative, or on the Board's own motion, on the following grounds:

(a) Denial of due process. Examples of circumstances in which denial of due process of law will be conceded are:

(1) When the appellant was denied his or her right to representation through action or inaction by Department of Veterans Affairs or Board of Veterans' Appeals personnel,

(2) When there was a prejudicial failure to afford the appellant a personal hearing. (Where there was a failure to honor a request for a hearing and a hearing is subsequently scheduled, but the appellant fails to appear, the decision will not be vacated.), and

(3) For a legacy appeal, as defined in § 19.2 of this chapter, when a Statement of the Case or required Supplemental Statement of the Case was not provided.

(b) Allowance of benefits based on false or fraudulent evidence. Where it is determined on reconsideration that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant, the prior decision will be vacated only with respect to the issue or issues to which, within the judgment of the Board, the false or fraudulent evidence was material.

(Authority: 38 U.S.C. 7104(a))

[57 FR 4109, Feb. 3, 1992. Redesignated and amended at 84 FR 177, 191, Jan. 18, 2019, as amended at 84 FR 4337, Feb. 15, 2019]

[Dustoff1970]

In 2004? The cavc court ruled the VA and bva failed to adjudicate my inferred/implied claim for a tdiu rating prior to 98. This was in response to a cue appeal l filed with the court in 2000.

The court vacated and remand decision was in fact an invalidation of a bva appeal decision in my case.

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

Edited November 20, 2023 by Dustoff1970

[jfrei]

Well I previously submitted evidence so trying out the new higher review 

[broncovet]

While there are people on both sides of this fence, I dont use HLR for multiple reasons:

1.  HLR specifically excludes new evidence.  If you have new evidence and want to keep it at the VARO, then there is the Supplemental claim.  

2.  Again, this is disputed, but it appears to me that its rather rare for the VARO to reverse their own decision without new evidence, which is exactly what the Veteran "hopes for" with a HLR.   For the VA to deny, then have a "higher level" rater overturn this and award benefits is an admission of an error, which the VA does not like to do. (admit they made one or more errors).  Its pretty easy for them to just cut and paste the old denial.  Remember, there is something called stare decisis.  

Quote

Stare decisis means “to stand by things decided” in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision.

Stare decisis means stand by things decided.  The VA gets around this by saying this is a more experienced rater the second time around.  

[jfrei]

Correct me if Im wrong but was a DRO review way better I thought i had brought new evidence they took into consideration and they helped me win my appeal they said because they werent allowed to grant such a high costing backpay it had to be done at the board which is why she certified it immediately to the BVA which saved me years of waiting