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This Knol is provided to you to describe general processes and procedures that occur during the application for disability compensation and pension and other benefits within the Department of Veterans Affairs System. Any author you find here is not providing you with legal advice. Any information provided by this Knol or any contributor to this Knol is not intended as and should not be construed as legal advice. You should always consult an attorney to help answer specific questions regarding how VA laws apply to you and/or your situation. The summaries provided here are incomplete, and the DVA laws and regulations are subject to change. We do not guarantee and we are not liable for the accuracy or completeness of any of the information provided, or any results or outcome as a result of the use of this information. |
| Public Domain. Records of the U. S. Marine Corps. (127-W-A-185146) By an unknown photographer, August 3, 1965 "Da Nang, Vietnam...A young Marine private waits on the beach during the Marine landing" |
How To Appeal
Overview of the VA Appellate Process
Let the Appellate Process Begin!
As a veteran’s advocate, you may have helped a veteran-client complete the VA’s application for compensation and, or pension (VA form 21-526). Some months later, the client calls to inform you that he or she has just received notice of a rating decision from the VA Regional Office denying the claim. The following materials will help guide you through the initial appeals process at the Board of Veterans’ Appeals (aka “BVA” and, or “the Board”) or at the U.S. Court of Appeals for Veterans Claims (aka “the Veterans Court” or “the CAVC”).
Keys to Getting the Appeal Out of VARO and to the BVA
The highest adjudicative body of the VA is the Board of Veterans’ Appeals (“Board”), located in Washington, DC. It is here that a decision issued by a VARO and appealed by a veteran would be reviewed and re-adjudicated. The Board currently is comprised of four decision teams, divided along geographical lines, and consists of 56 Board Members and 240 staff counsel. The Board can consider new evidence that was not considered by the VARO, but only if the veteran waives consideration of the new evidence by the Regional Office. The Board is permitted to seek its own medical opinions in some cases.
1. VA form 9: The Substantive Appeal
Once veteran files VA form 9, the Board of Veterans’ Appeals (“BVA”) assigns a docket number. Advise veteran NOT TO SUBMIT ANY MORE EVIDENCE TO VARO – NO EXCEPTIONS!! Otherwise, the VARO is required to issue another SSOC, more delays ensue, and no change in outcome of case and, or the original adverse decision.
BVA assigns docket number in numerical order, and uses it to decide order of case review on first-in, first-out rule. If your veteran-claimant qualifies, submit a Motion to Advance Case on BVA’s Docket. Examples of valid reasons for such a motion: if the veteran-claimant is seriously ill, under severe financial hardship, or other specific sufficient cause shown (per 38 CFR 20.900 (2007)).
Note: the filing of the Substantive Appeal (aka “Formal Appeal”) and the earlier NOD are the only 2 MANDATORY actions required of a claimant to perfect an appeal to the BVA. Like the NOD, the Substantive Appeal must be filed with the VARO that issued the adverse Rating Decision. The Substantive Appeal must be filed within 60 days of the mailing of the SOC or within remainder of 1-year period of mailing of notice of Rating Decision, whichever period ends later.
Necessary Information To Include on VA form 9
(Per 38 CFR § 20.202 (2007)):
a. Identify the Rating Decision by Date
b. Identify Issues / Claims Denied in Rating Decision
c. Set out Factual Issues on Appeal and summarize specific arguments for each – KISS (Keep It Simple Stupid)
d. Set out Legal Issues on Appeal and summarize specific arguments for each – KISS!
e. Box 8 of the VA form 9 – do you want a BVA Hearing? If it’s a factual issue involving credibility of the veteran, then consider requesting the BVA hearing.
Keep in mind that you can request a “Video-conference Hearing” even though it’s not included as an option on the VA form 9. If a legal issue is at the crux of the appeal, then more efficient and effective to pass on BVA hearing and set out detailed argument in a written brief.
2. Once the VA form 9 is submitted
VARO certifies appeal to the BVA (usually by internal VA form 8) and send the veteran-claimant a “90 day letter” which tells the veteran he or she has 90 days (or until BVA makes a decision) to change representation, submit additional evidence or argument, or change request re a hearing. Even after 90 days, veteran may still be able to do any of these by requesting an extension for “good cause” – see 38 C.F.R. § 20.1304(b)(1).
3. Analyzing a BVA Decision for Procedural Errors;
i.e., how to identify when the VA failed to comply with VCAA notice requirements
The Veterans Claims Assistance Act of 2000 requires the VA, upon receipt of a complete or substantially complete application for benefits, to notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. The VCAA is now codified at 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2007).
First notice element = notice of info or evidence needed to substantiate the claim;
Second notice element = notice of info and evidence, if any, that claimant must provide in order to substantiate claim;
Third notice element = notice of info or evidence that the VA, in accordance with duty to assist, will attempt to obtain on behalf of claimant; and,
Fourth notice element = duty that VA request that the claimant provide any evidence in their possession that pertains to the claim.
Timing requirement = notice must be provided upon receipt of complete or substantially complete application.
4. Analyzing a BVA Decision for the following types of substantive errors:
BVA findings of material fact that are “clearly erroneous”:
Whether constitutional provisions, VA statutes, regulations, or M21-1 provisions were violated or misapplied
Failure to comply with a BVA or CAVC remand order
Failure to reopen a claim supported by new and material evidence
Failure to consider a claim or legal theory reasonably raised by the record
Failure of BVA to State its Reasons or Bases for its Findings of Fact and Conclusions of Law
BVA Findings on Medical or Vocational Issues of Fact Unsupported by Competent Evidence in the Record
The BVA’s Failure to Explain Why It Rejected Positive Evidence Supporting the Claim
Keys to Filing an Appeal to the CAVC
The BVA decision must be “final”, which means it must be a denial of a claim for benefits. If the BVA remands a claim for benefits to the VARO, then the BVA decision is not appealable to the Veterans Court.
What if it’s a multi-issue BVA decision, with one issue is denied, but others are granted or remanded? Determine whether any of the issues are “inextricably intertwined”. If so, then the Veterans Court may conclude, after the appeal is filed that the denied issue must be readjudicated with the remanded issue, thus relinquishing its jurisdiction to consider the denied claim. Note that the “inextricably intertwined” test is not particularly objective. Thus, if uncertain as to the reviewability of a partial remand, then advocate should file a protective Notice of Appeal (NOA) with the Veterans Court.
The NOA must be received or mailed using the U.S. Postal Service within 120 days of the date of the BVA decision. The 120-Day Clock starts ticking when:
1. BVA mails decision to last known address of veteran; and,
2. If veteran has representative, BVA sends copy to rep by any means so that reasonable to reach rep approximately same time as BVA decision reached veteran.
BVA has Presumption of Regularity on their side. How to overcome it: clear evidence to the contrary.
If you missed the 120-day deadline to file the NOA, then Equitable Tolling may be available to excuse the 120-day requirement. Consider whether the underlying facts of your situation are similar to cases in which the Federal Circuit excused the 120-day deadline:
1. The veteran was mislead or induced by the VA into missing the deadline for filing the NOA (see Jacquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002)); or,
2. The veteran actively pursued his judicial remedies but misfiled the pleading by sending it to the wrong location within the 120-day deadline for filing the NOA (see Jacquay); or,
3. The veteran’s failure to file timely was the direct result of a physical or mental illness that prevented the claimant from engaging in rational thought or deliberate decision making or rendered the claimant incapable of handling his or her own affairs or unable to function in society (see Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005).
NOTE: Negligence will never be an acceptable reason for the 120-day requirement to be equitably tolled.
Pursuant to Rule 3(c) of the Veterans Court’s Rules of Practice and Procedure, the following information must be included on a timely-filed NOA to be considered compliant:
1. The most recent name, address, and telephone number of the person(s) taking the appeal and the appropriate VA claims file number; and,
2. Reasonable identification of the actual Board decision being appealed and a statement that can be reasonably construed as seeking Court review of that Board decision; and,
3. If filed by a representative, other than one making a limited appearance, be accompanied by a notice of appearance and its attachments.
Keys to a Successful Appeal to the US CAVC
1. Know the organization of the Veterans Court:
The CAVC is the federal court that hears appeals from the BVA. The CAVC is “young” in that it is only 20 years old; it was created in 1988, when Congress passed Veterans’ Judicial Review Act. The CAVC consists of seven judges who are appointed by the President to fifteen-year terms. Chief Judge William P. Greene, Jr. has sat at the helm of the CAVC since August 2005. The CAVC is an appellate court, so it hears no new testimony, conducts no trials, and considers no new evidence. Instead, it considers the BVA decision, the administrative record that was before the VA, and briefs of the parties before it.
2. The Veterans Court’s Scope of Review
a. Regarding Applications of Law
Pursuant to 38 U.S.C. § 7261(a)(3), the Veterans Court has the authority to set aside pure issues of law as unlawful if the Court finds them to be, among other things, “arbitrary, capricious, [or] an abuse of discretion,” “in violation of statutory right,” “not in accordance with law,” or “without observance of procedure required by law.” See Horowitz v. Brown, 5 Vet.App. 217 (1993).
When reviewing pure issues of law, the Court reviews the VA’s resolution of the issue de novo, with no deference to the BVA’s view of the law.
b. Regarding Adverse BVA Findings of Fact
The Court reviews BVA findings of fact under a “clearly erroneous” standard; see 38 U.S.C. § 7261(a)(4).
c. Regarding Issues Applying Law to Fact
The Veterans Court will give some deference to BVA determinations involving mixed issues of fact and law. The Court will not put themselves in the position of the VA and decide what they would have done given same set of facts and law. Thus, here the Court applies a deferential standard of review, and will not set aside a BVA decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 38 U.S.C. § 7261(a)(3)(A)
d. Issues Beyond the Veterans Court’s Power To Review
i. In most cases, the Veterans Court does not have the authority to resolve issues that were not resolved by the BVA prior to the appeal to the CAVC. This limit on its power to review is based on two principles:
1. The Veterans Court is an appellate court with limited jurisdiction. Pursuant to 38 U.S.C. § 7261(a)(3), the Court is prohibited from making factual findings in the first instance.
2. As a reviewing court, the Veterans Court’s role is to determine the propriety of the action taken by the BVA, judged solely on bases invoked by the agency. This is a fundamental rule in administrative law.
ii. The Veterans Court may not review findings of fact made by the BVA that are favorable to the claimant. Similarly, recent case law seems to indicate that the Veterans Court must accept a BVA or RO ruling that resolves in the claimant’s favor an issue that is partly factual and partly legal in nature. See, e.g., Williams v. Principi, 15 Vet. App. 189, 198 (2001) (holding that the Court could not review a favorable BVA ruling on the appropriate effective date for award of benefits).
iii. The Veterans Court is prohibited from reviewing the propriety of the schedule of ratings for disabilities as specified by Congress or as promulgated by the Secretary of the VA.
BUT, the Veterans Court does have authority to review the BVA’s interpretation of the rating schedule. See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004)
iv. The CAVC does not have jurisdiction to review the VA Secretary’s exercise of authority under 38 U.S.C. § 503(a) to grant equitable relief to claimants due to administrative error on the part of the VA. The distinction here is the Secretary’s authority to grant relief based on principles of equity from his authority to award benefits based upon statutory entitlements.
Katrina J. Eagle, Attorney at Law
http://www.wildhaberlaw.com/
It is of primary importance for veterans to understand that no matter how entitled to VA compensation they may be, it does come with strings attached. VA service-connected compensation is meant to do just that – compensate a veteran for the inability of that veteran to earn a living or “obtain and, or maintain gainful employment” because of his or her service-related medical conditions. The VA takes the stance that all medical conditions have the potential to improve, resolve, and, or disappear completely (unless determined to be “permanent and total”). Thus, the VA orders re examinations in order to assess the current severity of the veteran’s service-connected disability.
Here are the key VA Rules and Regulations relevant to this issue:
a. The VA can (and will) schedule reexaminations for veterans who receive compensation benefits at any time. See 38 CFR § 3.327(a), (c) (2007).
b. If the veteran fails to appear for a reexam without good cause, the VA can (and will) reduce or discontinue the veteran’s monthly disability payments. See 38 CFR 3.655(c) (2007).
c. Generally, reexams are scheduled within 2 – 5 years of last VA exam, and are conducted so that the VA can assign a rating that reflects current severity of veteran’s disability.
d. But, the VA should not schedule a reexams if any of the following situations exist:
e. Any rating evaluation that has “stabilized”, i.e., that it has “continued for a long period of time (5 yrs or more) at the same level” may not be reduced unless all evidence of record shows SUSTAINED IMPROVEMENT in the disability. See 38 CFR 3.344(a),(c) (2007).
Note: “Sustained improvement” must be based on all evidence of record; i.e., a change in rating cannot be based on single examination “in isolation of rest of the record”.
So, despite fitting into one of the 5 categories listed above, a veteran gets a letter in the mail from the VA informing him or her of the VA’s “proposal to reduce” the veteran’s disability evaluation for one or more service-connected conditions. First important aspect to realize: this letter (and any accompanying documents) is not a decision to which a veteran can submit a Notice of Disagreement. It is a proposal, but should be handled with the same care and concern as though the VA had made an actual decision.
The Process by Which the VA Will Attempt to Reduce a Veteran’s Service-Connected Disability Rating:
VA must send a notice specifying the proposed adverse action. See 38 CFR §§ 3.103(b)(2), 3.105(e) (2007).
Ways to challenge a VA proposal to reduce a veteran’s disability rating:
a) Review the most recent VA medical evaluation – was it “full and complete”? Any exam that is less thorough than the exam used to GRANT benefits may not be used as a basis for a reduction. See 38 CFR 3.344(a).
b) Consider the nature of the medical condition. If the disability is prone to temporary and episodic improvement, it cannot be reduced based on the findings of any one exam UNLESS all the evidence of record “clearly warrants the conclusion that sustained improvement has been demonstrated” AND the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 CFR § 3.344(a) (2007).
c) Review the VA’s historical evaluation(s) of the disability – has the VA assigned it a continuous rating? If a disability has been rated continuously at or above a particular rating level for 20 years or more, the VA cannot reduce the rating below that level, unless fraud has been committed. See 38 CFR § 3.951(b) (2007). Such a continuous rating is often referred to as a “protected rating.” This same 20-year rule also applies to rating levels that are assigned retroactively when a previous decision was revised based on CUE.
Beware of the misleading language in the VA regulation! The VA can reduce a “protected rating”, just never below the lowest rating ever assigned to it so long as it stayed at or above that lowest rating for 20 years or more.
Ways to challenge a VA proposal to reduce a veteran’s TOTAL disability evaluation:
a. In order for the VA to properly reduce a total (100%) disability evaluation, it must have examination findings of MATERIAL IMPROVEMENT in the disability. See 38 CFR § 3.343(a) (2007). But, “material improvement” must also be shown “under the ordinary conditions of life, i.e., while working or actively seeking work.” So, VA rationale must include review and comparison of the disability’s past AND current symptomatology. Also take note that the VA cannot reduce a total rating simply because its current symptoms equate to a lesser disability rating in the Diagnostic Code’s Schedule of Ratings.
b. Even when the VA properly shows MATERIAL IMPROVEMENT such that a total rating warrants reduction, if the veteran is unable to engage in “substantially gainful employment” because of the service-connected disability, the veteran must be awarded a total (100%) rating based on individual unemployability (aka “TDIU” or “IU”). See 38 CFR § 4.16 (2007). The VA cannot reduce a total rating based on TDIU unless “clear and convincing evidence” establishes that the veteran is capable of “actual employability.” See 38 CFR § 3.343(c) (2007).
Ways to challenge a VA proposal to reduce a veteran’s UNPROTECTED disability rating:
Even cases that involve disability ratings in effect for less than 5 years and, or less than total (100%) disability ratings (aka “unprotected cases) are subject to several VA rules and regs with which VA must comply:
a. Any proposed reduction must be based upon review of entire history of veteran’s disability;
Consider these arguments when challenging a reduction in an unprotected case:
a. The VA must outline the time period in which application of 38 CFR § 3.344 (re stabilization of disability eval) is based.
Regarding the VA’s severance of service-connected compensation, these are the two common circumstances:
a) Due to Fraud by Claimant –
b) The process and the due process protections are identical to when VA proposes a disability rating reduction.
d) Due to clear and unmistakable error (C&UE) in the decision which granted service connection.
e) In these types of cases, the burden of proof is on the VA to substantiate C&UE. It’s worth also noting the C&UE in the context of severance is not the same as C&UE regarding other issue; in severance cases, evidence and, or info after decision was made can be considered.
Katrina’s tips for veterans facing a VA proposal to reduce a service-connected disability rating:
1. Ask for Predetermination Hearing whenever possible; make sure the veteran is credible and sympathetic!
How To Write A NOD Letter
Jim StricklandEventually it is more likely than not that you will receive a notice from the Veterans Benefits Administration (VBA) advising you of an action that you disagree with. The notice may be a denial of your application for benefits, a notice of an apportionment action against your benefits, notification of a proposal to reduce your benefit amount because you're in violation of the "fleeing felon" regulations or a host of other issues.
Any letter from the VBA that suggests that an action is about to occur that may cause you to lose benefits must be addressed quickly. The sooner you respond to such notice, the more likely it is that the outcome will be favorable to you.
Receipt of such a letter from VBA is no reason to panic. If you work quickly and thoughtfuly, you'll interrupt or reverse the process without too much fanfare.
As with all actions and communications with VBA, the written letter is a powerful tool to have at your disposal. A well crafted letter is a physical object that must be faced by the VBA. In contrast, a telephone call to the toll free number is probably not going to garner any attention at all for you and a false sense of security may make you miss a time requirement. Faxing isn't much better...fax machines are notoriously unreliable.
The letter delivered via certified mail, return receipt requested is the best way to ensure the delivery of your document.
As with all written communication to your VBA, the letter should be professional in appearence, to the point with no unnecessary verbiage and be as brief as possible while including the required language.
Here is a template that you can use;
01/01/2010
Department of Veterans Affairs
Regional Office
P.O. Box 01234-5678
Your VBA City, State
Zip
Your Name and All Relevant Numbers (SSN, C-File, etc.)
Dear Sir/Madame:
I have received your letter dated (enter the date of the VBA letter). In that letter you have advised me that (my benefits are denied, you propose to reduce my benefits, someone has asked to apportion my payments, you believe I am a fugitive felon, or any other action VBA has advised you of).
Please accept this document as my Notice of Disagreement with your (name the action or proposed action).
I request that you take no action to reduce or modify my monthly benefit amount at this time.
I request that I be allowed a personal hearing and de novo review of my file and this (proposed?) action by a Decision Review Officer.
Thank you for your kind attention to this issue. I await your notice that my personal hearing has been scheduled.
Respectfully submitted,
Joseph Sixpak
Address
Telephone Numbers
Email Address
You'll notice that there is no argument in this letter to tell VBA why you believe they've erred. This letter is only intended to halt whatever process is occurring and to buy you some time to think of how you should respond.
The VBA believes that your timely notice is very important. They don't hold themselves to any such time limits. A brief letter like that above will satisfy any 30 day rules. By getting this to VBA within 30 days of the date of the letter they sent to you, you've put the ball back into their court. It's now up to VBA to schedule that hearing.
Before the hearing, if you're able, you should present your evidence and argument that will prove why VBA has made a mistake in trying to reduce your benefit. You may mail it in, enclosing a cover letter similar to the letter above that explains your position. If you've done a good job, you may get a notice that the personal hearing isn't required and the matter may be dropped.
At the very least, you've bought time in which you may prepare a good defense, consult with an advocate and you're much more in control of how the process will affect you.
The DRO Process
As you know, there are a number of complex steps that the Veterans Benefits Administration (VBA) will follow to adjudicate your claim for disability benefits. Your claim is received, checked to determine your eligibility, evidence is gathered and put in place in your folder, you are given a Compensation and Pension examination, you are notified a number of times of your opportunity to submit more evidence and the folder is perfected by a Veterans Service Representative (VSR). Eventually your claim is ready for adjudication and it marches on to the desk of the Ratings Veterans Service Representative (RSVR).
The RSVR is under tremendous pressure to turn out a given volume of work. This VA employee operates on a quota that doesn't allow the time that would be necessary to do a thorough reading of your entire folder. This is one of the points in the process where serious mistakes often occur. You may receive a denial of your application for a benefit or an extrememly lower rating than you believe you deserve at this stage.
Upon receiving your award letter and discovering that the decision is flawed, you have one year to appeal that decision. This appeals process allows you to have your case sent to the Board of Veterans Appeals (BVA) for a complete review by a higher authority.
There are other divisions of time built into the appeals process. If you respond within 60 days of the date of the award/denial letter, you may ask for a Decision Review Officer (DRO) review and hearing. The DRO process is often much faster than a BVA process as the folder is kept "local" at the Regional Office (RO).
The DRO is a senior employee with greater training and experience and significant authority to make independent decisions. The DRO process is a "de novo" review. This means that the individual who is reviewing your claim has not been previously involved in the review of your file and brings no bias or preconceived ideas to the task.
In my own experience with numerous DRO reviews, I believe that this is the first time that any individual in the system will actually sit down and read your folder completely.
TBC WIP
The CUE Claim
John Forristal, Attorney At LawWhat’s A CUE Claim?
CUE means “Clear and Unmistakable Error” in a final decision by either a Department of Veterans Affairs Regional Office (VARO) or by the Board of Veterans’ Appeals (BVA). A decision becomes final when either appeals have been exhausted or the time to appeal has expired. CUE claims are attractive because there is no time limit for filing the claim and if successful, the veteran will receive back pay dating back to the effective date of the original claim containing the CUE. Therefore, a successful CUE claim could result in a large pay out to the veteran. But, unfortunately, CUE claims are difficult to prove because you cannot submit new evidence and must rely on the record as it existed at the time of the decision.
What Exactly Constitutes CUE?
CUE is defined by the Code of Federal Regulations as:
Clear and unmistakable error is a very specific and rare kind of error. It 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 statuary and regulatory provisions extant at the time were incorrectly applied.
38 CFR Section 20.1403(a)
In plain English, CUE is an error that is obvious upon review and the error caused an incorrect decision. Or put another way: but for the obvious error, the decision would have been different.
Importantly, the CUE claim must be based on the record and the law as it existed at the time of the decision that allegedly contained the CUE. Therefore, no new evidence is permitted in a CUE claim nor can you argue a change in the law warrants a different decision.
But, like most things in VA world, there is an exception: for BVA decisions issued after July 21, 1992, the record that existed on the date of the decision includes both the record in the BVA’s possession on that date and evidence that could “reasonably be expected to be part of the record” on that date. 38 C.F.R. § 20.1403(b)(2). That means if you can show that the BVA should have had VA medical records or other adjudicative records in its possession on the date of the decision, even if those records were never sent to the BVA for review before rendering its decision, these documents are officially part of the record. This is known as “constructive notice.”
Constructive notice can be a powerful ally in a CUE claim and therefore you should carefully compare the record the VA sent to the VARO or BVA and the record that the VA actually had in its possession. If you find such documents, and these documents, had they been sent to the VARO or BVA, would have resulted in a different decision, you have a good claim for CUE.
You Must Specifically State the CUE:
When filing a CUE claim, the veteran must plead CUE with specificity. The CUE claim must clearly and specifically set forth the “alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.” 38 CFR § 20.1404(b) (2007).
This means that the veteran must present a detailed and logical argument showing: (1) the alleged CUE of fact or law; (2) the factual or legal reasons for the alleged CUE of fact or law; and (3) why the decision would have been “manifestly different but for the alleged error.” If you simply state that the previous decision contained CUE without providing exactly how the previous decision contained CUE, your CUE claim will be dismissed.
Even though the VA must give pro se CUE claims (claims filed by the veteran himself without a representative) a “sympathetic reading,” it would be folly for any pro se veteran to submit a generally worded CUE claim such as: “the decision of the RO contains CUE.” You need to show the CUE and make a factual or legal argument (depending on whether the alleged CUE is based on fact or law) why the decision would have been manifestly different but for the CUE.
The error might be “Clear and Unmistakable” to the veteran, but do not assume it is clear to the VA. Make a deliberate, well-reasoned, point-by-point argument that clearly demonstrates the CUE. If the CUE claim does not contain the required specific allegation(s), it will be dismissed without prejudice (meaning you can refile and try again or appeal the dismissal to the CAVC).
Furthermore, the CUE claim must be in writing and signed by the moving party or representative. The motion must contain: name of the veteran; name of the moving party if different from the veteran; VA file number; date of the BVA decision that allegedly contains CUE; the specific issue (particular benefit) or issues in dispute. Failure to include the required elements in the CUE brief can result in the claim being dismissed. Don’t let that happen.
Earlier Effective Date for a CUE Claim:
Winning a CUE claim can have huge benefits because the veteran can obtain an earlier effective date. Any previous decision that is subsequently revised or reversed based on a CUE claim “has the same effect as if the decision had been made on the date of the prior decision.” 38 USC § 5109A. In other words, the effective date will be the date of the original denial that contained the CUE. Considering that there is no time limit for filing a CUE claim, this “reach back” to the date of the original denial can be a huge sum for the veteran.
Obviously, because of the earlier effective date, a CUE claim is preferable to reopening a previously finally decided claim. If the appeal time has passed and a veteran is seeking to reopen a previously denied claim, a CUE claim can be very beneficial.
Differences Between a CUE Claim and Reopening a Previous Denial:
A CUE claim is not considered an attempt to reopen a previously denied claim and therefore the VA will not accept new and material evidence as part of a CUE claim. Only the record and law as it existed at the time of the decision (with sole exception of constructive notice discussed above) will be considered in a CUE claim. Furthermore, the VA does not have duty to notify and assist the veteran in developing his CUE claim, nor is the VA’s failure to adequately notify and assist in an earlier claim grounds for CUE. Likewise, the VA does not have a duty to develop the claim pursuant to 38 USCS § 5103(a) and the “benefit of the doubt” presumption under 38 USCS § 5107(b) is not given to the veteran in a CUE claim. Without any of the normal rules to assist the veteran in his claim for CUE, it is imperative to develop your argument and clearly show the CUE in the previous decision.
What Cannot be CUE?
The Code of Federal Regulations provides that the following situations do not constitute CUE:
(d)
(1) Changed diagnosis. A new medical diagnosis that ‘corrects’ an earlier diagnosis considered in a Board decision.
(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.
(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
38 CFR 20.1403 (d)(3) above is most interesting. As long as the VA relied on some negative evidence that was in the record, even the most dubious and slimmest of evidence, a veteran cannot argue that the analysis was flawed. It doesn’t matter if the evidence on the veteran’s side amounted to a mountain and the negative evidence on the other side amounted to a mole hill, so long as the VA relied on the negative evidence to reach its finding of fact adverse to the veteran, it cannot be challenged as CUE. The CAVC put it this way: “when there is evidence that is both pro and con on the issue it is impossible for the appellant to succeed in showing that ‘the result would have been manifestly different.’” Simmons v. West, 13 Vet.App. 501 (2000). If you find yourself in this situation, the best route is to reopen the claim with new and material evidence that specifically rebuts the VA’s previous rationale for denying the claim.
Some Examples of CUE
Failure to Fully & Sympathetically Develop Claim
Even though the failure of the VA to fulfill its duty to assist a veteran is not grounds for a CUE claim, the courts have allowed CUE claims based on the VA’s failure to “fully and sympathetically develop a veteran’s claim to its optimum.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). This means that the VA must “give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations.’” Moody 360 F.3d at 1310. Therefore, if there was evidence when the previous decision was made that the veteran was eligible for compensation for a claim not raised by the veteran, and the VA did not adjudicate that claim, this constitutes CUE.
For example, if a veteran applies for benefits for back problems relating to an incident while serving in Vietnam and subsequent VA medical exams reveal the veteran has Hodgkin’s disease, the VA has a duty to adjudicate a claim for Hodgkin’s disease on the veteran’s behalf (Hodgkin’s disease is a presumptive service-connected condition for veterans who served in Vietnam). Failure of the VA to adjudicate a claim for Hodgkin’s disease would be CUE and the effective date for the Hodgkin’s claim will date back to the date of the back injury claim.
38 CFR 3.156(c) Using Newly Added Service Records
You can use 38 CFR 3.156(c) to get an earlier effective date “if the VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” So, if after reviewing your C-file you find official service records that were added to your file after the denial, and these documents would have manifestly changed the decision, you can argue for CUE based on 38 CFR 3.156(c). An example would be a previous denied claim for PTSD because of lack of a stressor in service. If an official service document is added to your file after this denial that clearly shows the veteran suffered a stressor in service, the veteran can use 38 CFR 3.156(c) to get an earlier effective date equal to the date he originally filed the claim for PTSD (assuming you have the proper nexus and medical opinion).
Where to File a CUE Claim:
Only a final decision (the decision was not appealed and the time to appeal has expired) by a VARO or the BVA can be appealed based on CUE. If a previous decision was appealed to the US Court of Appeals for Veterans Claims (CAVC), and the CAVC decided the issue, a CUE claim is not an option. The only way to get a CUE claim before the CAVC is for the veteran to timely appeal the BVA’s denial of a CUE claim. Also, if the same issue (a request for a specific benefit) has been twice decided by the BVA, a CUE claim is not an option.
If the final decision was at the VARO, then file the CUE claim at the VARO that issued the final decision that allegedly contains the CUE. A denial of the CUE claim at the VARO can be appealed to the BVA.
If the final decision was at the BVA (the decision was not appealed to the CAVC and the time to appeal has expired), then file the CUE claim with the BVA. A denial of the CUE claim at the BVA can be appealed to the CAVC.
When you send in the CUE claim, be sure to request a hearing, either in DC or before a traveling Board at your local VARO. That way you can address all the issues thoroughly and more importantly be able to address any issues the Board members may have about your claim.
Conclusion
The key to a CUE claim is a thorough review of the legal reasons and facts in the record relied upon by the VARO or BVA. If the VA misapplied the law, state exactly how it did so. You must also thoroughly review the veteran’s C-file to determine if there are any documents that support the original claim that were not reviewed by the VARO or BVA. If you find such documents, and review of the documents in the original claim would have resulted in a manifestly different outcome, then you have a good CUE claim. Remember to use the VA’s duty to fully and sympathetically develop your claim when applicable.
Anonymous
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VA claim granted "in full" by VBA in DC...timeline?
What is the next step? When does he find out his rating (ie %)? How long does the Regional Office have to process the claim? How long until he receives his first disablilty check (and 14 years of back payment?)
chris
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CUE claim and other late action options
My first question is do I have any other options besides a CUE to appeal my rating and/or get it changed in any way? I understand that beyond the 1 year mark my options are limited. I really wish someone had sat me down and fully detailed me on that one but I understand that it's the bed I made.
My second question is where/how do I get help with a CUE? I'd prefer a free option but will take any help I can get.
Jim
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Anonymous
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Length of Time
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