Clear and Unmistakable Error, or CUE, is one of the most misunderstood, misconstrued, miscombobulated legal concepts for Veterans to absorb. The idea of reaching back into the past to right a wrong is a wonderful thing we enjoy. As long as you understand this is going to be a knife fight in a dark alley and somebody’s feelings are going to get hurt, you jump in thinking justice can be attained. Nothing could be farther from the truth.
CUE must be blatant. CUE must be visible from across the room. People from all walks of life should be able to look at it and exclaim “Lookey, Bob. Take a good, long gander here. Thet there’s CUE. See thet?” CUE must also pass other tests which I will expound upon but I want to give you a feel for how it gets misconstrued by many and much judicial time is wasted dedicated to fruitless endeavors.
CUE rules are very simple in VA jurisprudence but as we will notice, the VA’s published standard and their actual tape measure, are far different. VA will indulge in the famous “bait and switch” using smoke for camo to deflect the CUE into the wrong legal argument. You’re busy trying to engage them in a discussion about how you got screwed on the rating in 1986 when you should be arguing about the error in the prior denial in 1982 where the real CUE began. VA is not going to point out the legal flaw for you either.
This is no-holds barred litigation. Nonadversarial went out the window with Benefit of the Doubt and a Veteran friendly environment in which to present your claim. A CUE claim is Perry Mason calling Hamilton Burger a chowderhead who isn’t familiar with the LA penal code- and probably never will be.
Many have talked of CUE but the essence is never quite captured. Let me attempt to shine a light that dispels what it isn’t first. Many Vets come to me and show me evidence that clearly refutes what happened in, say, 1986. Okay. Move to the next disqualifier. Was this evidence part of the record in 1986? Good. Was it open to two different, equally compelling theories, either of which could have been correct? Yep. Then you lose. You can’t come back for a do over and argue how the facts were decided. This is perhaps one of the hardest legal concepts to learn. It has to be a Holy Shit, Batman-epiphany error. Reasonable minds can concur that, but for that one (or more) error(s), a completely different “butterfly” line of history would have happened.
Was it a diagnosis that said acute in 1986? A later diagnosis, not part of the records, saying chronic now refutes it. Yep. You lose. A newer diagnosis that states it was chronic back when you filed was not part of the record in 1986 and cannot be introduced in evidence. The Motion to Revise (CUE) must be based on the 1986 facts in the Evidence of Record (EOR) or what we call your c-file. You cannot use newer CAVC or Federal Circuit Court precedence to win with either. Your whole legal argument must rest on established law in effect at the time of your decision.
Did they ignore the rules and regulations? Yes? Was it due to a misinterpretation of the earlier regulations which was subsequently corrected such as Walker v. Shinseki and the correct interpretation of 38 CFR §3.303(b) was finally interpreted the proper way? Yep. You lose. Just because you won in 1986 based on flawed law doesn’t mean VA can’t come back and “fix” it. They “fix” Vet’s ratings all the time based on CUE. Your only defense in these situations relies on a twenty year rating. Once you have that, VA cannot rescind it regardless of the current law unless you obtained it by fraud.
Did they forget to go get your medical records at Mt. Altoona Community Hospital when you filed in 86? You filled out and signed the Form 21-4142 authorizing them to obtain the records but a search of your c-file does not reveal them. Failure to assist. You get a do over, right? Nope. You lose. The duty to assist was taken off the table after Russell v. Derwinski. Read Caffrey v. Brown . Seems what we call a failure in the duty to assist has to be detected and objected to before it’s final. This falls into the category of ‘An incomplete record is not an incorrect record”.
You’re the lucky Vet and you have all the correct stuff to prove CUE and it gets down to the last test. But for the error, had it not been made, would there have manifestly been a major, different outcome? This is the Claymore mine most Vets hit the wire on. Unless it cannot even be proven otherwise that a different outcome would positively have (not might have, could have, possibly, mighty sure or My Uncle Clem won on that) ensued and you would have prevailed, you lose. The outcome must be undebatable. You have to have the photo finish picture to prove it, too.
A classic example of what isn’t CUE is you win a claim and they gave you 20%. You come back five years later and ask for an increase and they give you 60%. You say you should have gotten that at the beginning. Tough luck. You lose. You had an opportunity to pitch a bitch back then but hey-you settled for it. No Indian giver stuff now, hoss.
Imagine a Chutes and Ladders game where all the chutes head to the basement and denial. All the rungs of the ladders are broken or missing, too. And the spinner’s loaded. Welcome to CUE jurisprudence.
To prove CUE, you have to have an indisputable fact, buttressed by law current at the time. The indisputable fact must be so overwhelmingly obvious that it would seem almost impossible to not see it. This may be why it’s so hard to win given the relative density of VA’s raters.
VA is extremely loathe to air their dirty laundry. When they make a mistake of epic proportions like CUE, absent any back pressure, don’t expect them to be self-starters and motivated to correct it.
I just finished what may be my final appeal to VA to correct a major error. To make a long story very short, I had a C&P exam July 18th, 2008. The doctor worked for QTC and was a production line type. He reviewed my skin for Porphyria Cutanea Tarda damage, both current and from the past, annotated I got regular phlebotomies once a month to control it and stated (incorrectly) that more than 6 square inches of exposed skin was not involved. However, in the diagnosis and effects on living, he said I was totally disabled. VA proceeded to award me 10% for phlebotomies. When I filed a NOD for DRO review, they upped it to 40% for the phlebotomies but took back the 10%.
Here’s the C&P exam. Click on it to magnify for reading.
At first, I only perceived the 10% takeback as the CUE. After rereading the C&P exam, it was clear that I should have been awarded a full 100% from the get go. I had fallen into VA’s trap. They proceeded to make it a strawman argument over the recission of the 10%. The very last thing they wanted to relitigate was 100% versus 40%, or even 10%. I suspect they never really looked at page two of the C&P exam where the real rating language was. Instead they “top sheeted” it and spotted the phlebotomies and the skin language.
THE PRESUMPTION OF STUPIDITY
Therefore we are back in court as it were. Being pro se, Veterans are accorded the Presumption of Stupidity and allowed to bumble around quite a bit more than if we had legal minders. This is why I can go back and change the particulars of my CUE insinuation. Yes. It’s still CUE but it occurred October 1, 2008, not March 29, 2010. If you were represented by an attorney, VA would forbid this puddle- jumping from theory to theory. Fortunately for us, many chuckleheads have done what I’m doing as it finally dawns on us that VA screws everything up from the get go. I filed my Motion to Revise based on what I perceived as error. After more investigation, I unraveled it and corrected, or fine-tuned my argument in my NOD. If I find other compelling legal epiphanies on appeal at the BVA, I am entitled to present them as well up until they make their decision. This bugs them no end, I assure you. Pro se Vets are a pill. Fortunately for us, even if we are represented by a mentally challenged service officer from a major VSO, the Courts still view them as legalzoom.com-i.e. a poor substitute for a real attorney with a Juris Doctor after his name.
First, the October 10, 2011 filing which they lost. I refiled it again on August 12th, 2012. This is why you always use the green card on the major filings.
Then the denial of the Motion to Revise. I expected to lose. 85% of us do so on the first trip out. Almost 100% do on CUE filings. No anomalies here:
Then read the enclosed NOD which rebuts their bait and switch refusal to recognize CUE in this claim. Use VA’s laws against them. If they hang you with a regulation, use it to hang them right back with. The Presumption of Regularity is going to be one of our most potent tools in the future in this respect. Every time you turn around, VA is trying to extend this philosophy into decisions. ‘VA examiner is presumed to know his head from his ass, therefore…’ ‘The IME/IMO was probative and the doctor was presumed to be knowledgeable about HCV even though he was a podiatrist…’ Hey, you guys know the drill.
The important thing to keep in perspective is that VA is going to purposefully pretend they were born yesterday (at night) and are clueless. There will be a brief summary of the evidence and then a hard-charging denial that knocks all the underpinnings out of the argument. Unfortunately it’s often all wasted effort on the wrong legal standard or precept. When they are finally brought to bear on the correct facts, the argument becomes much more amenable to arbitration. I have known them to continue to evade the real premise which is why you want to iterate it over and over to the point of redundancy and painful boredom. LawBob Squarepants taught me that one.
Proving CUE based on a nebulous theory that is built on a lot of “could haves” and “it seemed to me at the time that” will never prevail. When you allege CUE, it’s akin to calling someone a child molester. You had better have the evidence if you want to be believed. Here, the evidence has to be part of the EOR and subject to only one logical explanation. If you need to do a PowerPoint Presentation, chances are your Motion isn’t going get airborne. Read Fugo v. Brown to get a better idea of the legal requirements.
CUE is initially a two- pronged fork where either one of the elements is enough to prevail. Having passed that test, the “manifestly change the outcome” is the third and final pass/fail. Far too many of us make our cases and then fall flat like a souffle when it comes time to prove the outcome would be different. That is why you have to lay the foundation for it back in Phase one of the CUE elements.
Never proceed into a CUE by dividing the elements up into pieces. This legal action requires lego-like precision. Each part must fit together like it grew there. The ankle bone’s connected to the … knee bone and the knee bone’s connected to the …. thigh bone. When all is said and connected, it’s like a chain link fence perfectly woven together. Each fact is indisputable. Each decision they made is legally indefensible because the preliminary precept was faulty. Identify that first mistake that set all the other dominoes in motion and you have the winning ticket that manifestly changes the outcome.
Old decisions have many errors. VA and especially the BVA, felt they were a law unto themselves before the Veterans Justice Reform Act (VJRA) was instituted by Congress in 1988. Unfortunately, they continued in that vein for years and years. The Court has spent an inordinate amount of time curbing their errant tendencies. To say they are wiser and don’t make mistakes now is hogwash. They are an insurance company. They deny. Legally or any other way- but they deny. This we know.
CUE is just one area where VA feels Veterans don’t belong. It’s messy and time consuming. It opens old defective practices and decision-making that reveals unmitigated bias and indifference to the Vet’s plight. It shows VA for their true colors- colors they would much rather keep out of sight. The brouhaha at the Phoenix VAMC will just be the tip of the iceberg of VA misfeasance, too. You can expect that to metastasize to other VAMCs soon. It’s systemic and not unique to Phoenix. A trick that good would be shared with other VAMCs. You can bet on it.
Hopefully this helps some of you on your decision-making regarding CUE. It is definitely not for FNGs to the claims world. It is something that must be held up to inspection for hours and days to get the perfect perspective and argument. Augment the error with regulations that either forbid or do not support the error. Illustrate all the other possible permutations such as two views of the evidence and discount them to remove it from the argument. Strip the old decision down to it’s bare bones to show why it would have been different if the correct facts were looked at or perhaps to show that they were not looked at in the correct legal light.
A CUE claim, correctly constructed, could be delivered and argued by Mojo, Homer Simpson’s trained chimp. It’s a complete, stand-alone argument that is indisputable. After reading it, there can be no discussion of merits or faults pro or con. Either it’s wrong or it isn’t. If you make the case airtight, you win. For some reason, few of us do. Either that or we all are just overly litigious and like to torture VA.
The great news is the VA admitted defeat in 2016, I was awarded the 100% for Porphyria all the way back to 1994 with SMC at the “S” Rate. Cool beans. Win or Die.