Buck. you suggested to use CUE as the last means but I have used it as an IMMEDIATE frontal assault after I got my last two or three decisions. I have not had time to fully prepare something I mentioned here before. I need to request from VA Sec Shulkin to develop a fast Letter that advises how a claimant can request the VA to CUE itself in an unappealed decision within the appeal period.This way all vet reps and vet lawyers who get the fast letter will have an obligation to not only look right away for CUE in any decision, but also to have a regulation to back up a CUE filed in the appeal period.This could reduce the backlog and keep the claim at the RO until they do it right. Oddly enough, even without any formal reg, it sure has worked for me, and two vets here have used this tactic so far. As I mentioned in my HBP 1151 CUE it took less than a month for their reversal of their ludicrous denial. I have 3 CUEs in Word now, which I already sent to the director but have been so pressed for time that maybe this coming week they will be formally sent in. Since my husband died over 22 years ago every single issue VA I had was denied right off the bat and I regret I didnt use this tactic sooner.It would have definitely kept my AO DMI death claim out of the BVA. A 2005 CUE I filed got me a fast double DRO review,but still they ignored my IMos and I chose to take the BVA route, and the BVA certainly awarded the claim and also agreed my VCAA rights had been violated. This tactic and an NOD along with the CUE is what got the VA to reverse the only claim my daughter has had as a veteran. It was for her DEA entitlement certificate. A BIG error, and they reversed 3 weeks after she got the NOD/CUE I prepared and she copied, signed and mailed it to them at the VA Education Department here in NY. Sometimes VA EDU is an oxymoron. I think this vet here has a very good vet rep who was willing to prepare and file a CUE . I think most vet reps are either too lazy or too incompetent to do that….or maybe would be very willing to, if they had a formal regulation to do it with.
A decision that has become final may not be reversed or revised in the absence of a showing of CUE. 38 U.S.C. § 7111(a). CUE “is a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403(a).
The Court has no jurisdiction to consider a CUE claim it in the first instance. 38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran’s Court can exercise jurisdiction over it”); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that “[t]he necessary jurisdictional ‘hook’ for this Court to act is a decision of the [Board] on the specific issue of ‘clear and unmistakable error'”).VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a “clear and unmistakable error” (often called a “CUE”). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right. A true CUE is not common and is a difficult claim to win. Read More