The decision below contains an example of CUE (Clear and Unmistakable Error)- one of very few you will ever see. CUE effectively nullifies a prior decision by either the RO or the BVA. The BVA is the arbiter of this. It never occurs at the CAVC level. The Cout can rule on it, though. Always remember, the CAVC is not a trier of fact. They are the ones who decide if the BVA violated your rights or the law in coming to their determination.
CUE is so rare and the obstacles to proving it are so monumental that Vets rarely win this fight. We print this decision to enlighten readers as to the stringent requirements needed to succeed and the arcane legal arguments used to describe it. It has most recently been described as an “outcome determinative decision” which can be loosely translated into Dick and Jane speak meaning ” We came to the wrong decision predicated on bogus information or the RO’s failure to read everything about the case. We get to do that, but you don’t.”
http://www.va.gov/vetapp10/Files2/1012182.txt
Think of CUE as a mistake – either on your part by using fraud to obtain benefits or VA’s mistake for either granting or denying a benefit. If and when VA discovers it, they can come after you for it. If it was an erroneous denial on their part and you petition for redress, they will review the prior decision for what they consider to be errors. You must be specific about what the error entails and prove that but for the mistake/error, a manifestly different outcome (a grant) would have ensued. The error must be one that is obvious on its face. It must be based on only evidence that was a matter of record at the time of the earlier adjudication. The laws and regulations at the time are all you are allowed to cite for precedence-nothing newer that occurred later judicially. The error must have been the deciding factor in the denial such that reasonable minds can see it was undebatable and clearly erroneous. A minor defect in adjudication which would not have changed the outcome is not CUE.
With all that said, the VA is allowed to constantly tamper with it, and already started adding to that long list. In 1992, the Russell decision (en banc) took the benefit of the doubt out of the error column and added the “manifestly different” language. The Fugo decision added one precept. Merely claiming a generic CUE or reciting the word in Court does not make CUE a fact. The Vet has to be more specific and point to the actual CUE error with some specificity- hell- a lot of specificity. The Caffrey decision took Failure in the Duty to Assist in obtaining private medical records out of the CUE arena. Notice I said “private” and not SMRs. The Schafrath decision was adamant that the VA had to go after any records from service. The Bell decision in 92 set a date stamp on whether records were constructively in the possession of the VA at the time of the decision. Anything before the 11/92 decision does not qualify. There have been other minor tuneups over the years, but for the most part it has been static. The Vet can presumably see from this how daunting the task is to overturn an old decision. Few motions succeed, but they do occur regularly. The ROs tend to catch most, but not all, defective decisions before they escape the reservation. VAROs are loathe to admit CUE and prone to play Custer by shooting the horses and making a stand. Be prepared to go up the ladder on this. The regulations are summed up in 38 CFR § 20.1400 – § 20.1411. Here is the link:
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Bethanie Spangenberg
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robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 