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

[Vync]

Great information!

They should be cut and dry, straight to the point, just the facts without any opinion or emotion. The less you write, the less they have to read.

Describe any VA laws, regs, or policies they failed to apply properly at the time the decision was made.

Quote

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. 

Regarding the above, if the VA misplaces documents and they are not in front of the adjudicator at the time the decision was made, they still are in the record and can be considered once found. If the VA authors any documentation, be it handwritten, typed, radiology images, etc... the are considered to be in the record.

 

I hope the VA has trained their new employees on what CUE is and is not. When I filed a CUE in 2019, they did nothing for six months while trying to figure out which form I was supposed to use. I kindly educated them on M21-1 to inform them no form was needed. They still did nothing until I filed it on a supplemental. However, I have not checked to see if a form is currently needed or not, so double-check that if you plan to file any new CUEs.

[Dustoff1970]

In 2000 I filed a CUE claim stating VARO in 1985 to 98 committed four CUE errors and after VA denial and BVA appeal denial I appealed pro se all four CUE errors in one appeal to the U.S. CAVC court of veterans appeals. 

In 2003 or 04 the CAVC judge said no CUE errors by VARO or BVA but he agreed that my 4th CUE error claiming the VARO failed to adjudicate me for TDIU was in fact an error in law and fact and remanded my TDIU CUE error claim back to BVA and VARO for the VA to properly evaluate me for TDIU back to about 95 or so.  

By this time the VARO had read the tea leaves and had already awarded me P&T TDIU back dated about 5 years.

So my partial victory at the CAVC was a big win for me and my hard work at self representation of court appeal before the CAVC. 

P.S.  Even if the BVA and/or CAVC denies that VA committed CUE you can still win a CUE claim by the BVA or court agreeing that a non CUE error was committed.  Back pay may not be as much but sometimes half a loaf is better than no loaf.

Try it and you may succeed.  Happy face here.

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

 

 

[Andyman73]

My CUE claim, filed in 2015, was for an unadjudicated claim, originally filed in '06. I had refiled for same issue in '15, and was granted a 30% rating, based on near identical C&P exam findings. After getting turned away, by a dozen law firms(including NOVA), I forged ahead on my own. I purchased the 2015 Title 38 CFR(best $189 I ever spent). And wrote my claim based on the VA's own words. About a month later I was granted my CUE claim, and was granted the 9yr, 8month earlier date. 

I just want to say thanks again, to all who answered my questions back then. Ms. Berta was an inspiration, and a veritable fount of knowledge. 

[Dot09]

Andy man 

congratulations on your cue. I’m now filing my first cue. If you want you can look at my post below.

 

[Lemuel]

On 10/23/2023 at 7:24 AM, Vync said:

Great information!

They should be cut and dry, straight to the point, just the facts without any opinion or emotion. The less you write, the less they have to read.

Describe any VA laws, regs, or policies they failed to apply properly at the time the decision was made.

Regarding the above, if the VA misplaces documents and they are not in front of the adjudicator at the time the decision was made, they still are in the record and can be considered once found. If the VA authors any documentation, be it handwritten, typed, radiology images, etc... the are considered to be in the record.

 

I hope the VA has trained their new employees on what CUE is and is not. When I filed a CUE in 2019, they did nothing for six months while trying to figure out which form I was supposed to use. I kindly educated them on M21-1 to inform them no form was needed. They still did nothing until I filed it on a supplemental. However, I have not checked to see if a form is currently needed or not, so double-check that if you plan to file any new CUEs.

I believe, records in military archives but not actually in the VA file at the time are also considered to be "of record".  Example:  IPTR of injuries that include a head injury because of unconsciousness noted in the IPTR but not in the NARRATIVE SUMMARY which is the only item from the hospital inpatient records that was in the old hard copy files.  My case, complex partial seizures noted by description in the Nursing Notes in the IPTR but not in the NARRATIVE SUMMARY.  I was unaware of the notes also until 1989 when I spotted them in the IPTR.  I had filed an extra-schedular claim for TDIU when my combined rating was only 40% but a C&P physician recorded I would not be able to hold a job "because of his spells."  In April of 2020 I was granted TDIU back to September of 1985, my last full time job, based upon that unprocessed 1987 extra-schedular claim and not having worked at all, even parttime since 1990.  There was a CUE in it because the BVA failed to take into consideration page 2 of my parttime employer's statement.  It would have qualified as a CUE because the 21-4138 2 sided form was in the file.  Just obviously not read by the BVA judge writing the decision as well as the unprocessed extra-schedular 1987 claim. 

By 2020 there was also the CAVES Social Security record in the file.  I was granted SSDI after a very exhaustive investigation effective September of 1990 in 1996.  The VA claims process is not the only slow process.

Now, I believe, that is not a problem because all of the digital data records are moved to the VA benefits file including the IPTR of any military hospitalizations.

I am currently in a CUE claim that involves a nexus for seizures in the IPTR that was not recorded in the NARRATIVE SUMMARY.  A BVA decision on an RO decision that did not have the IPTR but the IPTR may have been in the file by the time of the BVA Decision.  But the IPTR was not in the BVA benefits file in 1974 and would have caused a more thorough injury residuals examination had it been there.  When I finally get this issue heard, I will post it quoting all of my posts which ever thread they are in.

[jfrei]

My first cue claim was cut and dry they failed to look at the evidence . But my denial for bilateral hearing loss was met with the same denial in 2010 as was 2020 and  2023. The only difference is Im wiser Ive stated the use of the 3M plugs at every exam I even brought my pair I wore in to show them. I indeed sent them away to my lawyer for the settlement and finally the paperwork next week will be in my hands to sign to take part of the settlement. Thats the link they were missing to my service connection, my question is do I file a cue appeal or just reopen my last claim with the evidence and ask for an earlier effective date when I was originally denied  in 2010? Nothings ever easy just has gotten more confusing

Edited November 19, 2023 by jfrei