CLEAR & UNMISTAKBLE ERROR
- Challenging Final Decisions -
"Clear and Unmistakable Error" - also commonly known as CUE - is a mechanism to reopen old claims by challenging "clear and unmistakable error" in a final VA decision. This procedural device is rarely used, and even more rarely successful. However, it is an enormously, beneficial remedy for the veteran when properly applied.
The normal rule is a Rating Decision by the Regional Office becomes final and not appealable unless the veteran files a Notice of Disagreement within one year of the date of the Rating Decision. [See Appeal] If the veteran fails to appeal the Rating Decision, the veteran is bound by it. Whatever it has decided is binding. It is an "adjudicated" or final decision. The veteran can only avoid its effect by seeking to reopen the claim with new and material evidence or filing a CUE claim. The same is true with a decision by the Board of Veterans Appeals. In the event the veteran does not timely appeal a Board of Veterans Appeals' decision to the United States Court of Appeals for Veterans Claims, the veteran is bound by it. [See
Appeal]
The purpose of the CUE claim is simple and straight forward. Like everything else in the VA claims process, it is extremely technical, and entirely dependent upon the facts involved. Its focus is to revise a finally decided claim because the final decision was based on "clear and unmistakable error". It may used against any Regional Office Rating Decision, or in most instances against any decision by the Board of Veterans Appeals. It, however, may not be used against claims twice decided by the Board of Veterans' Appeals, or by claims finally decided by the United States Court of Appeals for Veterans Claims, the United States Court of Appeals for the Federal Circuit, or the extremely improbable decision on a claim by the United States Supreme Court.
The relevant regulations provide a CUE claim must: (1) clearly and specifically set forth in sufficient detail; (2) the alleged CUE of fact or law; (3) the legal or factual basis for such a claim; and, (4) why the result would have been "manifestly different", but for the alleged error."
Unfortunately, the normal rules friendly to the veteran do not apply in a CUE claim. Specifically, this includes the following rules which do not apply: (1) the "benefit of the doubt" rule which mandates the veteran receive every benefit of the doubt in the development and review of his or her claim; (2) the "new and material evidence" rule which reopens a claim if the veteran supplies new and material evidence; (3) the VA's duty to develop the claim in so far as it must obtain records and provide the veteran notice; and, (4) the VA's general duty to assist the veteran in his or her making the claim. These rules, the heart of VA claims processes, do not apply.
The focus of the CUE claim's review is not new evidence. In fact, new evidence is not admissible. Instead, the focus is on the evidence which was in the record, or which was in the possession of the VA but had not been placed into the record. The latter instance might include service medical records which had been misfiled or simply never properly retrieved by the VA in its development of the claim. While these records were not in the actual claim record, the records must have been in the possession of the VA though to be considered.
The focus of the VA's review of the CUE claim is whether the alleged error actually occurred, and, even if it did, would the result have been "manifestly different". That is favorable to the veteran, but for the error.
While a veteran may not challenge a final decision by a CUE claim based on the VA's alleged failure to develop the claim's file originally, or provide the veteran the appropriate notices required by the law, or any other failure in its duty to assist the veteran in making his claim, a CUE claim may be used to challenge the VA's failure to "sympathetically develop" a claim. However, this failure must be evident from a review of the actual record the claim was decided on, including other documents not in the claims' file, but which were in the possession of the VA at the time of the decision. This type of failure is most often focused on the VA's failure to develop the claim by broadly reviewing the evidence for all claims whether raised by the veteran or not. The VA's limited focus of reviewing the evidence failed its duty to broadly and sympathetically develop the entire range of available claims. That is, the VA missed a claim, although not raised by the specific language of the claim, which was raised by the evidence contained in the record.
For instance, assume a veteran files a simple hand-written filled in form seeking relief for his headaches. While developing the record in the claim, evidence comes forward from whatever sources which shows veteran actually is suffering from several other maladies which appear potentially service-connected. Possibly a herniated disc in his cervical spine, and diabetes (and he is a Vietnam veteran with presumed exposure to Agent Orange). The VA must develop these claims. It must then also make a decision on them. In the event it does not, the claims remain unadjudicated claims.
Another type of CUE claim is an attack on the effective date granted to a claim. This is often seen in either of two failures by the VA.
The first is the non-adjudication of a claim expressly raised by the veteran. If the record shows veteran made a claim, which was simply overlooked and not decided by the VA, the claim is unadjudicated. That is it was never decided and it remains an open claim. If a veteran files a claim for the same benefit sometimes thereafter, normally by filing new and material evidence which reopens the claim, the effective date for this newly reopened claim relates back to the date of the filing of the prior, unadjudicated claim.
The second is an offshoot of the CUE claim based on the VA's failure to sympathetically develop the claim as described above. If the VA had ignored a claim which had been raised by the evidence - and not raised by the veteran's actual claim - [as described above] the claim was and remains unadjudicated. As such, the claim is a pending, never-decided, non-final claim. If a veteran files a claim for the same benefit sometimes thereafter, the effective date for the new claim relates back to the date the evidence first existed in the prior unadjudicated claim's file. That is, although it is a new claim, since it is seeking benefits which are like the benefits the unadjudicated claim's benefits sought [or should have sought if the VA had developed the claim properly when it was raised by the evidence], its effective date relates back to the time when evidence existed in the record which triggered the VA's duty to sympathetically develop that prior claim.
CUE claims can also be based on failures to follow the law in effect at the time of the original decision. This includes both regulations and statutes.
CUE is a very rare, but extraordinarily powerful remedy when available. The key is knowing when and how to seek its unique relief. It rewards are - when available - significant.
