CUE Appeals: A Case Study
Here we present a Case Study of CUE Appeals. Claims Examiners are under more pressure than ever to quickly evaluate claims and make decisions. As a result, Clear and Unmistakable Error cases are more common than ever. Claims Examiners are so rushed that they often overlook obvious bits of evidence or points of law.
Legally, CUE exists if the Claims Examiner incorrectly applied the law and that incorrect application manifestly affected the outcome. Examples can include overlooking an amended diagnosis that is in the file at the time, and improperly applying the law. The error must be specific. A general allegation like “failure to follow due process” is not enough for CUE Appeals.
Our VA disability team recently dealt with such a case. The VA initially denied benefits, but we remedied the situation. For purposes of this case study, we have removed the names to protect confidentiality.
Facts
This Veteran served honorably in the Marines between 2006 and 2010. During the course of this service, he sustained a traumatic brain injury that left him 100% disabled due to a combination of the TBI and the resultant Post Traumatic Stress Disorder. At the time, the Veteran claimed the condition entitled him to additional Special Monthly Compensation, but the VA denied that claim in part.
As a brief aside, SMC is additional money available to severely-disabled Veterans who need daily help with routine activities like bathing, dressing, eating, or adjusting prosthetics.
The Claims Examiner denied this request mostly because of overlooked evidence. Individually, items like a 10% disability rating for tinnitus (ringing in the ears), which the Veteran also had, might seem insignificant. However, as the court noted, “like a jigsaw puzzle, the different small pieces are fit together to complete the larger picture.”
A 2018 VA medical exam provided additional details. The Veteran was able to feed himself, but he could not cook for himself. Additionally, he could not enter and exit the shower by himself or dress and undress because of an imbalanced gait and chronic joint pain. Furthermore, because of the TBI, the Veteran had essentially no short-term memory and often experienced violent mood swings.
Decision
Based on the overlooked facts, the Board found that the Claims Examiner committed a CUE when he denied the additional SMC(t) claim. Initially, in 2012, the Claims Examiner erroneously determined that the Veteran only had occasional everyday impairments. The supplemental medical examination, as well as an IME, clearly refuted that conclusion.
Lay testimony played a part in the reversal, as is often the case. In 2019, the Veteran’s brother testified that the Veteran’s family had to remind him to eat, take his medicine, and attend to personal hygiene matters.
Granted, the Veteran’s family did not provide professional aid and attendance services, the kind of which normally justify SMC payments. However, absent their help, the Veteran would have been institutionalized, and that’s an alternative SMC measurement.
Rely on Dedicated Attorneys
CUE decisions are relatively easy to reverse if an attorney takes the right approach. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, PC at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
We will provide assistance for many types of issues on appeal, including, but not limited to: Dependency Indemnity Compensation, Agent Orange, Total Disability based on Individual Unemployability (TDIU), Traumatic Brain Injury (TBI), PTSD, and other mental health issues. Not included are Special Monthly Compensation issues.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.