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). This is a complicated subject, so we will be breaking the discussion into two parts. Part 1 today will deal with what types of errors constitute CUE. Part 2 will deal with the procedures for filing a CUE claim and how these motions are decided by the BVA. It is important to remember that these claims are very difficult to win, but we hope that these posts will shed some light on the process.
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 as 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. In part 2 we will discuss the procedures for filing a CUE claim and how these claims are decided.
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