If you think the VA made a big mistake on your claim, you want to learn more about a CUE case as it compares to a standard veteran’s disability appeal.
If you are a veteran, the last thing you want to do is deal with a clear and unequivocal error (CUE) from the Veterans Administration (VA) regarding your service, rating, or treatment. It is one thing to confront the enemy when you are a soldier on active duty, but you can never imagine fighting for your rights with a federal agency that you wanted to protect. Often it is not always possible to determine what a clear and unequivocal error (CUE) is with the VA, or whether the error that applies to you requires an appeal.
In this article about CUE cases and VA appeals:
- Clear and Unmistakable Error
- When Should You Do a CUE Case Instead of a Standard Appeal?
- An Example of a Clear and Unmistakable Error (CUE) Veterans’ Appeals Letter
- Clear and Unmistakable Error Decision Proposing Severing Veteran Disability
- Filing a Clear and Unmistakable Error Form
- Successful CUE Claims Motion for Revision Based On CUE Errors
- #1 Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992)
- #2 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002)
- #3 Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008)
- #4 Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991)
- #5 Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991)
- How to Write a Notice of Disagreement Based on Clear and Unmistakable Error
- Unmistakable Definition and Positive Final Results
If you’re caught between what constitutes CUE and what constitutes the reasons for a VA appeal against a decision that affects your rating, treatment, or service, there are answers to the myriad questions you may have. The answers inevitably lie within a VA Regional Office or Board of Veterans’ Appeal. Winning a CUE claim is notoriously difficult to achieve, but if you win a CUE case, it becomes a powerful tool that not only reverses previous VA decisions but also restores all retroactive salaries or benefits to which you are entitled.
Perhaps now is the time to fight for what was always your right. Read on to learn more about what’s the difference between CUE cases and VA appeals. Learn more about where you can go, what you can do, and why you need to take a positive step to get what you’re owed.
Clear and Unmistakable Error
CUE VA claims are sometimes called Motion for Revisions, mainly because the CUE claims clearly and concisely states that a rating decision you received was erroneous or incorrect. Furthermore, the CUE’s claim states that any rating decision may have to be put aside. Veterans must prove facts in a CUE application that clearly set out their claim in their C file because they complied with the provisions of the time.
That means the VA was wrong in its original decision, discounting both the regulations and the claim itself. Almost all CUE claims are dismissed and not approved. That means when veterans find out they need to consider a VA appeal or other legal approach to get the services, treatment, or pay they deserve, they need the help of a legal expert with experience and knowledge of the VA Disability Law.
When Should You Do a CUE Case Instead of a Standard Appeal?
Almost all veterans have to go a long way when dealing with a CUE case or a standard VA appeals process. There are usually four criteria that determine if you need to file a CUE claim. If you can meet these four criteria, you have a chance of winning the CUE entitlement.
Four common criteria include, but aren’t limited to:
- The known fact, the adjudicator, or the law, was misused and applied at the time of the CUE decision.
- The VA record was inconsistent with the law in place at the time of the CUE decision.
- Had the VA not made that mistake, a different decision would have been reached.
- If any reasonable person would consider the error to be beyond dispute and would not contradict you that what the VA did was wrong or erroneous.
CUE claims may be filed at any time, as there is no time limit for filing a claim, even if your claim was filed ten, twenty, or thirty years ago, as long as it was not appealed. Legal experts often advise their clients to appeal instead of file a CUE, because CUE claims are known to be lengthy and rejected most of the time. Often, a meeting with a veteran’s disability attorney is needed to get free legal advice to help you decide what to do next.
An Example of a Clear and Unmistakable Error (CUE) Veterans’ Appeals Letter
If you are trying to prove a clear and unmistakable error (CUE), there are a few criteria you want to ensure before you take your first legal step. You want to make sure that a reasonable person who is reviewing your claim can reach another final judgment. This means the outcome would have been very different if the error had not occurred and this legal provision had been derived from 38 C.F.R. Section 20.1403 (a).
Another example is the appeal of a CUE Veterans’ Appeal, which can occur when the rating of a veteran who does not comply with applicable laws or regulations is lowered. If the VA fails to properly apply laws or regulations, it not only fails to grant a veteran a sympathetic hearing but also fails to apply relevant laws and regulations to the veteran’s filing. This law and the provisions as set forth by Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).
Clear and Unmistakable Error Decision Proposing Severing Veteran Disability
There are legal safeguards to help veterans when the VA attempts to reduce disability classification or end service. Many veterans say since receiving their rating, they have not had to fight the VA, and they also think that means they will never have to fight the VA. The VA is required to send veterans a notification of a proposed reduction, but the veteran has only about sixty days to respond before the rating is lowered.
In addition, the veteran may request a hearing within thirty days of receiving the VA letter asking for a reduction, but that does not give veterans any significant time to ensure their evaluation, service, or disability. It is with these type of issues or actions you want to have legal representation. The sooner you seek legal recourse with a VA disability attorney, the quicker you can get the layout of a beneficial course of action.
A major unknown in the appeal process against a CUE decision that cancels disability obligations for veterans is that if for any reason you fail to meet the eligibility requirements, you may be prevented from ever filing a CUE appeal again. The VA doesn’t have to provide assistance with your CUE request, which means if you do it wrong, it’s pretty much a done deal. You gain unlimited knowledge and value by having a VA Disability Attorney to help you with your pleadings and motions.
Here is a video review from a client who was about to have the VA take away his veteran’s disability benefits.
Filing a Clear and Unmistakable Error Form
Each motion filed is based on CUE giving disabled veterans a second chance to receive the full amount of benefits they deserve. The motion must be part of a broader strategy, which must be carried out with strategic planning. The success of your motion application for revision of the CUE is an attempt to obtain the maximum VA disability compensation.
Your attempt to qualify for the maximum amount of benefits means both the Regional Office (RO) and the Board of Veterans Appeal (BVA) may have decisions that impact your motion filed for revision and change. Filing a clear and unmistakable error form almost always requires a qualified and valued VA disability attorney to help formulate the details of the CUE applications and how they can best be pursued on your behalf.
There is one constant you must always keep in mind: while you can file multiple applications based on a CUE for a RO decision, you can only have one request for revision based on a CUE for a BVA decision. In other words, you have one chance to do this properly, and it is, therefore, vital to consult with the legal expertise that will help you fight the good fight and achieve the legal results that you want and need.
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Successful CUE Claims Motion for Revision Based On CUE Errors
There are many successful CUE claims motions for revision based on CUE errors, but there are also many unsuccessful CUE claims. Some more famous successful CUE revision motions based on CUE errors include, but are not limited to, the following.
In this case, the VA was found culpable for not applying existing rules or bylaws at the time of the verdict.
#2 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002)
These were cases where the VA was found to have failed to comply with the rules governing whether an existing disability classification should be reduced.
#3 Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008)
In this case, the VA had failed to apply the standard provision of 38 C.F.R. § 3,303 (b) in establishing a presumption of service connection for chronically diagnosed diseases in service.
#4 Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991)
These cases showed that the VA failed to apply the known regulation that governs conditions that preexist the service of the veteran.
#5 Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991)
This case was won when the VA failed to apply the Schedule of Rating Disabilities properly and as regulated.
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How to Write a Notice of Disagreement Based on Clear and Unmistakable Error
You usually have three levels and ways of writing a notice of disagreement (NOD) based on a CUE Action or Ruling. You can have your claim reviewed by a higher claims expert in a higher-level review or audit. This review consists of a “fresh look” at the decision at a higher level, but no new evidence is allowed.
The only time a CUE is overturned at this level is when the new decision is a disagreement with the previous opinion or there was a clear and unequivocal error in the original decision. The reviewer will identify the error and return the claim to the regional office for correction.
You may also file a supplementary claim, which means you will identify and present new and relevant evidence to support your claim. Uniquely, the VA will assist in developing the evidence if that is the type of notice your legal counsel is filing. Finally, there is the appeal lane that’s used for appeals to the Board.
It is this appeal that allows direct review if you do not have new evidence and do not want a new hearing. Some appeals involve presenting new evidence but you don’t request a new hearing. Finally, you may also appeal and have a hearing to review the new evidence in front of a Veteran’s Law Judge.
Unmistakable Definition and Positive Final Results
At the end of the day, it comes down to how the VA, you, and your lawyer present the legal arguments unequivocally and truthfully. If you want to file a motion based on a clear and unmistakable error, you need to understand what that means and why you should or should not proceed with it.
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This is the kind of appeal that you don’t want to do on your own. Call us today and we’ll answer all of your questions on a free call. From there, we’ll connect you with a case manager and a whole team of doctors, lawyers, and others that want to help you get the best disability rating you can get. Woods and Woods, The Veteran’s Firm, has been helping people since 1985 and we’d love to help you too.