Federal Circuit Clarifies Number of Times CUE Can Be Raised on Appeal

Are you familiar with CUE? Clear and unmistakable error (CUE) is a means by which a veteran can resurrect a previously denied claim for disability compensation. Two different elements must be met in order for a Veteran to prevail on a CUE claim. First, either (1) the correct facts in the record were not before the adjudicator; or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Note, for CUE to prevail, the error must be undebatable, not merely a disagreement as to how the facts were weighed or evaluated; the error must be the type of error that would change the outcome of the case.

A Veteran is afforded the right to file a request to the Board of Veterans’ Appeals to reverse or revise a prior Board decision on the grounds that the prior decision contains clear and unmistakable error, as allowed by 38 U.S.C.S. § 7111; 38 C.F.R. 20.1400(b) (2010). Do you think your Board of Veterans’ Appeals decision contains CUE? It might. Due to recent Court of Appeals for Veteran’s Claims activity, now might be a good time to ask the Berry Law for a free review.

A 2011 decision by the Court of Appeals for Veterans Claims, recently affirmed by the U.S. Court of Appeals for the Federal Circuit, limits the number of CUE claims a veteran can make.

Prior to the decision in Hillyard v. Shinseki, 24 Vet. App. 343 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012), each theory for clear and unmistakable error on a Board of Veterans ‘ Appeals decision could be appealed separately. In Hillyard, the Court examined whether a prior decision by the Board to deny a particular claim barred all future clear and unmistakable error motions regarding that same claim, even if the theory advanced to support revision in the second appeal was different from the theory advanced in the first.

The Court held that the number of CUE claims may only be raised once on claims that have been adjudicated by the Board of Veterans’ Appeals. This means separate theories in support of a claim for benefits for a particular disability cannot be raised in separate CUE claims to the Court. The Court cited 38 C.F.R. § 20.1409(c) as the controlling law that prohibits these repeated challenges. The Court also clarified their ruling by stating a theory is a means of establishing an entitlement to a benefit for a disability and, if all theories pertain to the same benefit for the same disability, they constitute the same claim.

For veterans, this dictates, when raising CUE to the Board, all theories relating to a single benefit claim must be included in one motion, and the theory can only be advanced on the final Board Decision. This means the number of CUE claims a veteran can make are limited to one attempt. A skilled attorney can make a difference.

Note, as for the decisions that a Veteran receives from their Regional Office, the clear and unmistakable error motions can still be brought on different theories in different motions as provided in the case Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). The Hillyard decision only affects claims that have final Board decisions.

Do you feel like your Board decision, or Regional Office decision, may have clear and unmistakable error? Contact the Berry Law today at (888) 883-2483 to help you with your CUE claim.