Today we are going to talk about one of the avenues a veteran may have to appeal a BVA decision – filing a motion to revise a previous final BVA decision on the basis of clear and unmistakable error (CUE).
First of all, it is important to note that CUE applies to a very specific type of error made by the BVA. As outlined in 38 CFR 20.1403, CUE 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 provision extant at the time were incorrectly applied.” In simpler terms, this means that the CUE claim must be based upon the record and the law that existed at the time the decision was made, and the error made by the Board must have been significant enough that if it were not for that error, the Board would have reached a different conclusion.
The regulations provide specific examples of legal arguments that cannot be the basis of a CUE claim, including an argument that a later medical diagnosis shows that a medical diagnosis relied on by the BVA in a previous decision was incorrect, any argument related to the VA’s failure to comply with its duty to assist, an argument related to how the BVA weighed and evaluated facts, and an argument that a statute or regulation has been interpreted differently after the BVA decision.
So what types of arguments have been successful in finding CUE? Typically in order for the claim to be successful, it is necessary to show that the BVA failed to apply the correct regulation or applied the correct regulation in the wrong way. But remember, the error has to be significant enough that if the Board had not made the error, the result would have been different. Even if the BVA makes an error on one aspect of the case, such as one of the three elements of service connection, if the record as it existed at the time of the decision does not clearly show that all three elements of service connection are satisfied, then a CUE will likely not be successful because that error would be considered harmless.
As you can see, there is a very narrow set of errors to which CUE applies, but it is still an important area of VA law to be aware of in case your claim falls into that narrow window. This is because the effective date for a claim that successfully argues CUE is typically the date that the VA received the previously denied claim. This could mean many years of retroactive benefits depending on the timing of the two claims, because a CUE claim can be brought no matter how long ago the initial BVA decision became final. But note, the BVA decision cannot have been appealed to the Court of Appeals of Veterans Claims (CAVC) or the Federal Circuit. Also, if the BVA decision is recent enough that the window for appealing to the CAVC is still open, a CUE claim cannot be brought until the time period for appeal is over. A BVA decision can also not be challenged on the basis of CUE if the same claim has been denied two or more times (the initial claim, and then one or more reopened claims) and the last claim was unsuccessfully appealed to the CAVC. Basically, if you have an old BVA decision that has not been appealed to the CAVC, it may be eligible to be challenged on the basis of CUE.
Another important thing to remember is that there are very particular procedural requirements for a CUE claim. A motion to revise a previous BVA decision on the basis of CUE must be in writing, signed by the veteran or his or her representative, and include the veteran’s name, the VA filing number, the date of the BVA decision, and the specific issue or issues that the veteran is challenging. It is important to be clear that the motion is not a motion for reconsideration, but a CUE motion due to the fact that a BVA denial of a motion for reconsideration is not subject to review by the CAVC. The motion must allege specific errors of fact or law and why the result would have been different were it not for those errors. If the CUE motion is not specific enough, the BVA may dismiss the motion.
Note that a CUE is an original claim to the BVA, meaning the VA Regional Office plays no role in the decision. In addition, the benefit of the doubt rule that is in veterans’ favor for other claims does not apply and there is not duty to assist on the part of the VA. And remember, new evidence cannot be submitted, but the BVA is authorized to grant hearing requests. A BVA decision on a CUE claim can be appealed to the CAVC. If a CUE claim is unsuccessful, that is typically the end of the line because a veteran cannot bring more than one CUE challenge for a claim. There are some instances in which a veteran is able to bring a second CUE challenge for the same claim, such as if the denial was for a procedural reason, but because of the general rule that only one CUE challenge per claim is allowed, it is important to clearly bring up every potential issue in the initial CUE motion.