CUE Revisions Of Final Decisions

What are CUE revisions and how can they affect a VA disability claim if it was denied?  Regional Offices almost always deny VA benefits claims, at least in part. The Clear and Unmistakable Error (CUE) appeals path, if it is available, is often a shortcut to a successful appeal. 2020’s George v. Wilkie laid out some effective ground rules for CUE appeals.

VA appeals have a much higher success rate than RO reviews. That is because a VA disability attorney can advocate for Veterans before the Board of Veterans Appeals and a higher federal court. That advocacy ability makes a big difference. Additionally, a lawyer can give you legal advice during your appeal, so you can make the best possible choices for you and your family.

Facts

In the late 1960s, George served in Vietnam. Like many other Veterans, he struggled with Post Traumatic Stress Disorder for many years. He finally filed a VA disability claim in 1997. A Regional Office promptly denied the claim, noting there was no confirmed PTSD diagnosis and no in-service stressors. 

In the early 2000s, a series of legal maneuvers brought the claim back to life. Based on new medical and service record evidence, the RO granted the disability claim in 2007 and backdated benefits to 2003. George argued that the claim should have been backdated to 1998, which was when he initially filed. The Board of Veterans Appeals upheld the later date, noting that medical records indicated onset of PTSD in 2003.

George subsequently appealed that decision, claiming the BVA committed CUE when it failed to properly consider lay evidence and “imposed an unreasonable requirement that the medical evidence specify an onset date of the PTSD.” Essentially, George said the BVA reconsidered the date but did not reconsider the claim itself, and the BVA thus committed CUE.

Rule

CUE is the onlyone way to reopen a case after it otherwise becomes final. In order to prevail on CUE claims, Veterans must show that the adjudicator did not know all the facts or incorrectly applied the law, and the outcome would have been manifestly different if the error had not occurred. Additionally, the Clear and Unmistakable Error must have been arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. That is a standard well above a simple mistake, or even a serious mistake, it is essentially an egregious mistake.

Application

The court concluded that the supposed CUE regarding the PTSD diagnosis was simply a “disagreement.” This disagreement did not trigger the VA’s duty to assist George.

Nevertheless, the lower court did commit CUE when it failed to completely reassess the case. The Board had a duty to examine more than the onset date. However, the Court did not have jurisdiction to consider this argument, since it was a “latent” CUE argument. Unless the argument is raised timely, an appeals court will not consider it, no matter how valid it is.

The lesson of this case is clear. Even if you are clearly in the right, never rely on VA assistance. Always work with a competent attorney.

Count on Dedicated Attorneys

VA disability appeals are often successful, and they are always complex. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.

This article is for educational and marketing purposes only. It does not create an attorney-client relationship.