We have discussed CUE (Clear and Unmistakable Error) many times but few Vets know how and why it exists. It is another one of those blessings bestowed on us by a grateful nation for our service. Just as we are accorded the benefit of the doubt, so too are we allowed to disturb an otherwise settled case of law and reopen it for perceived error. This avenue is not available in a civil court.
Journey back to 1990 and see how the modern concept of CUE evolved. It started long before this in 1928 when the old VA first incorporated the idea. It was further enshrined in 1946 after the war when the more modern Board of Veterans Appeals system emerged. And there it sat until the Court of Veterans Appeals was inaugurated in 1989 by the VJRA.
The first case in the new CUE batter’s lineup was Mr. Russell L. Bentley on July 26th, 1990. Oddly, Mr. Bentley’s Christian name repeated itself almost 3 years later when the Court started chipping away at this sacred right in Russell v. Derwinski.
Mr. Bentley filed a long series of motions over a 40 year period with VA over his service connected injuries. VA shortchanged him in 1960 and he knew it. Fortunately for him, this finally came to a head after the new COVA was ensconced, thus allowing him a hearing before them. It was the very first CUE claim and therefore, as a panel decision, it set precedence. The reason for the appeal was clear cut and straight forward. Most aren’t this simple and require cogent, tortured reasoning. Mr. Bentley had been handed a 40% rating and his illness deserved 60%. The BVA said as much. Hell, even the Secretary admitted it, but somehow the Director of Compensations in D.C. got hold of it and screwed it up.
Hard on the heels of this came a trickle which turned into what surely felt like a potential flood to the Court. Mr. John W. Akins’ appeal was heard by the Court a month later on August 27th. Prior to his decision being decided, Mr. Bentley’s was on September 13th. The Court reversed and remanded the case for a decision consistent with their findings.
On April 23rd, 1991, the Court filed Mr. Akins’ decision and again reversed and remanded for readjudication consistent with their findings. Well, ladies and gentlemen, Vets were starting to sit up and take notice of this newfangled CUE thing and started sharpening their pencils and lubricating their typewriters. The concept of opening up an old 1946 decision and winning it in 1991 sounded pretty lucrative. Other Vets were reviewing their pending appeals and now started searching in vain for possible CUE.
On April Fools day of 1991, Mr. John G. Oppenheimer’s CUE claim came before the Court for its hearing. His decision was handed down on July 15th and remanded for more development by the Board.
Thompson, Akles and others were starting to crop up with similar reasons for review. Some had merit, some didn’t. As the filings amassed in the mail room, the Court decided it had to act and act fast. The proper vehicle arrived in the form of Mr. Robert B. Russell and Mrs. Rosie Sampson Collins. I guess the Court was still rather chauvinistic then because in spite of her being a lady and alphabetically before Mr. Russell, she still got second billing on the Header. I have attached that decision below as well for anyone who wishes to see the evolutionary aspect of the Veterans legal system.
The Secretary, in an attempt to stem the tide of CUE filings, tried something novel and implied the Court had no business reviewing BVA decisions for CUE. That went over like a lead balloon up at Indiana Ave. NW. Mr. Derwinski was kept after school and put on detention, but he did take away a strategic win here. The Court reasoned semantically that if there was a clear and unmistakable error, there can be no benefit of the doubt. Either there is an error or there isn’t.
More importantly, the Court held that if there was an error, and it wouldn’t have changed the outcome such that it yielded a win for the Vet, then it, too, wasn’t CUE. The phrase the Court chose was if the error didn’t manifestly change the outcome, then it wasn’t clear and unmistakable. This is where the concept of an outcome based decision arose. Henceforth, a simple procedural or statutory error that would not have granted the claim was no longer CUE. The heretofore two pronged pitchfork of CUE had just sprouted a new tine with Russell. Things have pretty much remained the same since, but Caffrey v. Brown (1994) did whittle another branch off the tree. Vets had often relied on incorrect or missing info in their claims file to win CUE. Caffrey held that an incomplete record was not an incorrect record.
The law has not retreated appreciably since then, but it does seem to shrink imperceptibly every time it arrives at the CAVC.
Join with me now as we climb into the DeLorean and visit 1990: Please click on Bentley below to open the PDF file and energize the hyperdrive motivator.
Attached is Bentley as well as Russell.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 