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.  

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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.  

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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

[pacmanx1]

2 hours ago, jfrei said:

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 

Unfortunately, both Legacy Appeals and AMA Appeals are both taking multiple years getting through the BVA. Of course, Legacy Appeals are taking longer but AMA Appeals were supposed to take no more than a year, but my current AMA Appeal is going on three (3) years and counting and whenever I contact the VA or the Whitehouse hotline for an updated status, I am told that my appeal is in the Direct Review Lane and there is no estimated time when the BVA will be able to get to my appeal.

Just so you will know, I filed a CUE claim requesting an Earlier Effective Date (EED) of an already service-connected disability. The VARO reopened my claim, sent me to an updated C & P exam and the examiner not only wrote me a favorable medical opinion, the examiner listed the VAMC medical treatment records and diagnosis dates in my DBQ Evaluation, but the VARO still denied my claim.

I went to my local VARO, and they suggested that I fill out a supplemental claim and the VA would catch it and award my correct effective date, but my supplemental claim was also denied. I was then told to fill out an HLR and they would catch it. I thought that it would most likely be another denial and then I would have to file an appeal to the BVA, so I decided to file directly to the BVA but my appeal for an EED is still pending with a favorable medical opinion that the BVA has just not gotten to it yet. I will hit my third year in a few months. Way longer than a simple year.

 

[namvet6567]

Personally, as long as the VA rates claims based on worked finished( ie: speed) not quality/precision, the system will never change.  Generally, the current claims person rubber stamps whatever the previous person rated.  Rarely have I found this not happening, which insures future work.  I've never seen a VA employee skip a break or lunch b/c they are busy.  jmo