I get a bang out of all the questions I get regarding Clear and Unmistakable Error. While I have written numerous articles on the subject, I get a lot of duplicate questions as if I’d never answered them before. Even more concerning is that there is so much disagreement on the subject -even among those who practice VA law for a living. With the advent of the new AMA, it is even more confusing in spite of the fact that nothing of consequence has changed.
As most know, it makes no difference which form you use to file. I’ve used all the new forms and VA personnel have demonstrated they have no idea what to do. Everything has to be on an approved VA form except a Motion to Revise. I have no doubt that will change some day soon but for now, you can file on a paper towel as long as it has all the metrics identifying you and your purported error-or what you perceive to be error.
I read some of the big VA attorney websites regarding CUE and am appalled there are not better explanations to describe all the different possibilities regarding CUE. If I find myself with extra time to burn, I like to go to the BVA website of appeals decisions and read more on the subject. While there certainly is a wide variety of adjudicative error, and more yet since the inception of the AMA, in truth there is only one form of CUE. Quite simply, it is a glaring error that reasonable minds have no problem decyphering. The ingredients have not changed. The statutes and regulations have not metamorphosed and segued into new interpretations. No, the identification of what we characterize as “CUE” has evolved into new interpretive terms. No longer is it a “rare” error as postulated in Fugo. Let’s analyze this.
First, a true CUE is something that has transpired which is wrong. The big fork in the road begins with whether it happened yesterday or in 1970. If you just got a decision denying service connection for Hep C based on your cirrhosis and VA says you had one year to file for cirrhosis when you got out, it’s a brand new CUE. This is not the end of the matter. What you do not want to do is file a Motion to Revise the error. That’s foolish. VA has a provision for you to write them and ask them to correct it pronto without litigating it for 8 years. The M 21 covers this contingency in M21-1, Part III, subpart iv, chapter 7, section B(3)(a) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); id., sec. B(3)(c) (requiring referral of an erroneous decision “to a decision maker to issue a new decision” once an error has been identified).
An antique CUE is a decision that is final. If you were denied for something in 1970 and just discovered VA made a mistake, you can file a Motion to Revise the error. As per law, you must find a specific error of contemporary law committed in 1970 or evidence, as it was known, to have not been before the adjudicator. Either error will suffice. Following that test, you must show that the error manifestly changed the outcome. This is why you sometimes hear the legal standard of review as an ‘outcome-based’ decision.
Okay, let’s add a wrinkle. Let’s say you filed in 1970 and lost. You can see the error and you want to fix it. Let’s say they read 38 CFR wrong. But hold the phone. You refiled for it in ’86 and lost again. If you filed a NOD and lost at the BVA, that’s all she wrote. Once you go through the appeals process and lose, that CUE theory is dead as a doornail. Or is it?
Here’s another wrinkle. Assume all the above is true. You go over the whole claim stream from 1970 to present and discover that VA also didn’t have all the records back then. You can, by law, file a new Motion to Revise based on a brand new facet of what you perceive as CUE. As long as it is a brand new theory, it is permissible to file anew.
Here’s a wonderful case study.
Johnny Vet comes down with Hepatitis (not otherwise specified) when he gets out in 1970. He’s within the magic 1-year limit so it’s gotta be SC, right? It might be A or B. It might have been C but that won’t be discovered until 1989 and testing won’t begin until 1992. Johnny finally gets out of the hospital and around to filing -but after a year has passed. VA denies but they have no records. Johnny doesn’t appeal and it dies. He refiles in ’86, ’94 and 2006. He loses each time and never appeals. Finally, in 2012, Johnny comes to me and we start chopping down trees to make enough paper to argue this. I refile it and get a nexus. Johnny finally wins 100% P&T but with a 2012 effective date. We file a NOD and scream CUE in 1970. This begins a new claim stream.
I discover he’d filed just outside the one-year limit but he contracted it within the magic one year. The BVA judge says no CUE. Go home. I’m ready to throw the towel in. When I began, I didn’t have access to VBMS. If I’d waited for the average year to get his c file, his CUE claim would have been done before I got it. Now, with VBMS, I spot a document (the very first one) showing that while he was lying in the VAMC hospital bed, some industrious VSO had filed an informal claim within that magic year. Thus, the 526 which appeared to be after the one year limit is actually legal and preserved his informal claim. Based on this, I refiled a new Motion to Revise(on a 526). Well, you know the VA bozos. They look at that filing as the wrong form because Johnny has already filed for this CUE once. I refile on the 995 to appease them and they deny saying “Sorry. You didn’t file any new and relevant evidence to support your 1970 CUE claim.” Well, duh. You are not allowed to do that. You have to explain it based on the existing record. Somehow, this escapes the rating wizards. Sending in a note saying they did it wrong using the above M 21 cite went unanswered so we’re now at the BVA again. The good news here is that I got Johnny advanced on the docket so it won’t take 4 years. I doubt he’ll be alive in 2024. He’s on Nivolumab® and we’re hoping it will give him a few more years before the liver box folds up and calls it quits.
Most all VA attorney websites describe the CUE process as a one-shot deal. They fail to realize that no two Veterans claims- let alone CUEs- are identical. I try to explain that to any who will listen but it seems to go over their heads. Most VA attorneys refuse to do CUE claims because the success rate is so low. I think the truth is that it’s too complex and they can accomplish three claims for increase in the time it takes one CUE claim to be adjudicated. Given that, and the misconception that you only get one bite of the apple, is reason enough for most of them to turn you down. I guess I’m different. If there’s a case for CUE, I’ll take it. Some of mine are still awaiting a Travel board hearing. My oldest was filed in 2016 regarding HCV. I had a hearing set up for May 7th but the coronavirus put the kibosh on that one. I’m now promised an August date.
After doing this continuously for almost 12 years, one thing I see over and over is something that greatly disturbs me. As most, if not all of you, probably know, asknod.org is unique in that I do not use the “Forum” model. A forum is open to all to put in their two cents worth. This is admirable and allows all the members to contribute their experiences as well as seek information on how the process works. I have pointed out above that no two claims are alike so any advice offered by John or Jane Vet is based on their own personal experience. If they failed to get an independent IMO and lost for many years, that might not be included in their advice. If they had a VSO who “misplaced” their evidence and it took three more attempts to summit Mount VA, they might not share all that with you. A forum allows everyone to commingle their knowledge unfiltered with little or no legal advice. When this happens, Veterans can be led astray and make horrendous mistakes based on erroneous advice.
A blog model of VA help such as this one teaches you the actual legal rationale for why you will succeed or fail. I spent innumerable years chasing the VA Holy Grail and failed thrice. On the fourth try, I began to take notes and research my failures. The BVA decisions website was the Rosetta Stone. There, I learned the concept of the Caluza triangle. It was so simple I wondered why no one-no one- in any of the Big Veterans help sites had even bothered to point it out. The Veterans Benefits Forum (VBN), admittedly one of the “Big” sites, even had a former VA rater who had retired and was now a Veterans Service Officer. One would tend to trust him of all people to give good advice. One would also be wrong if s/he surmised that. The advice was astonishingly wrong and misleading. His grasp of VA law was nonexistent inasmuch as I consider the M 21 to be pure fiction. Nevertheless, he was the go-to guru.
I made a great effort to point out the errors of law and ask for the legal justification for the former rater’s statements. I was rewarded with being banned for being argumentative. I still am to this day. I wear it as a badge of courage along with my lawsuit for slandering a certain Veterans Service Organization in 2015. I admit I’m somewhat sarcastic and can rub folks the wrong way on occasion. My rationale for being argumentative is simple. I hate to see anyone lose at this VA poker game. I want everyone to be a winner so my advice is not to demean anyone but to make their trip through the process smoother and more successful. Based on the fact that my success rate is 100 % to date, I don’t think my technique is in error. I will admit I lost one this spring. The Vet asked me to file him for Ischemic Heart Disease due to Agent Orange. I presumed he had the medical documentation to back this up. He used the VAMC exclusively so I relied on all that evidence to be readily accessible. It was. The problem was elementary-he had a left upper shoulder muscle strain and what he diagnosed as IHD…wasn’t. VA denied him and I felt pretty stupid. I can’t count that as a loss, frankly.
Which brings us to today. Apparently I have upset yet another Big Vet’s help site by trying to offer sound legal advice. I readily concede I see the controversy. One person offers his or her sage legal advice based solely on their experiences and extrapolates that the reason they won is based on ____________. I merely point out the legal standard of review, why the process worked for them (or why not) and am ostracized for demeaning the individual or somehow lessening his/her contribution. If I apologize, even that fails to right the perceived slight.
Offering advice appears to be becoming passé. In the Forum model, everyone is entitled to an opinion regardless of how inane or incorrect it may be. To correct anyone is seen as gauche. Sadly, for me personally, giving advice is a character flaw. I’m lazy. I can’t represent everyone in the Vet world so I offer the DIY method to help as many as possible. My failing seems to be carrying my epistle to other Vets help sites. Actually, banning me from offering advice is refreshing. All Forum sites have this mechanism (banning) in force to prevent folks from purposefully ‘flaming’ others and inciting verbal riots. With the blog model, I merely report what I have personally encountered in my defense of others’ claims. I cite to the laws I have relied on. Since I have experience based on many thousands of Vets’ claim/appeals rather than just my own, I bring an untainted, generalized perspective to the table. But- and it’s a big but- I do not censor anyone. I do not ban anyone. If you have a disparate opinion, you can always find a berth here and espouse your philosophy. My only codicil is that you stick to 38 USC and 38 CFR as it is written. Precedence is king until, or unless, it is overwritten.
My daddy once said “Fortunately, son, we live in America. You have the right to remain stupid. No one- not even the Encyclopaedia Britannica- can take that away from you.” Controversy in this business should be welcomed. If everyone used a fork to eat peas, no one would ever respect the individual who came along and introduced the spoon to the project. In the same vein, if any of you have a new, improved method to dig a good VA punji pit, I invite you to share it. I try to do this as soon as I discover them. I do not have “pay walls” to access any books to teach you my technique. I don’t have an endless supply of manuals for $49.95 that will lead you to VR&E success or TDIU Nirvana. I already wrote the most important book of all-how to win.
I will miss offering advice on my friend’s site but respect her and her members’ wishes. The last thing we need in this business is dissension, anger and unhappiness. And that’s all I’m going to say about that.