Validity of regulation
Department of Veterans Affairs (VA) rule on what constitutes clear and unmistakable error (CUE), supporting revision
of benefits decision of Board of Veterans' Appeals, what is the record to be considered, including limiting the date as
to when the doctrine of constructive notice applies, and addressing whether a change in the interpretation of a statute
or regulation may support a claim of CUE, is consistent with the governing statute and is not arbitrary or capricious.
38 U.S.C.A. §§ 7111, 7111(a, f); 38 C.F.R. § 20.1403(a), (b)(1, 2), (c–e). Disabled American Veterans v. Gober,
2000, 234 F.3d 682, rehearing denied, certiorari denied 121 S.Ct. 1605, 532 U.S. 973, 149 L.Ed.2d 471.Armed
Services
136
The duty of the Department of Veterans Affairs to assist veteran in developing facts pertinent to his or her claim for
disability benefits may arise when a veteran simply refers to the pertinent private medical examinations or treatments
without making a specific request. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a). Hayre v. West, 1999, 188 F.3d
1327, rehearing denied, in banc suggestion declined, on remand 15 Vet.App. 48.Armed Services
133(2)
In general
Mere disagreement with the way that a regional office (RO) evaluated the facts cannot be a basis for a finding of clear
and unmistakable error (CUE). Richardson v. Nicholson, 20 Vet.App. 64 (2006).Armed Services
134.5
In order to find clear and unmistakable error (CUE) it must be determined: (1) that either the facts known at the time
were not before the adjudicator or the law then in effect was incorrectly applied; (2) that an error occurred based on
the record and the law that existed at the time the decision was made; and (3) that, had the error not been made, the
outcome would have been manifestly different. Sorakubo v. Principi, 16 Vet.App. 120 (2002).Armed
Services
134.5
A claim of clear and unmistakable error (CUE) is a collateral attack that can only be made on a final decision of a
regional office of the Department of Veterans Affairs (VA) or the Board of Veterans' Appeals, and generally, rating
decisions by the VA are deemed final and binding as to conclusions based on the evidence on file at the time the VA
issues written notification of a decision. 38 C.F.R. § 3.104(a). Hayre v. West, 1999, 188 F.3d 1327, rehearing
denied, in banc suggestion declined, on remand 15 Vet.App. 48.Armed Services
134.5Armed Services
142
Veteran did not raise clear and unmistakable error (CUE) by Department of Veterans Affairs (VA) Regional Office
(RO) regarding 60% disability rating, although veteran had marked deformity of his hands and feet due to rheumatoid
arthritis (RA), since veteran did not require assistance with daily living activities. Proceviat v. Peake, 2008, 296
Fed.Appx. 941, 2008 WL 4573317, Unreported.Armed Services
134.5
Any decision in 1984 by the Board of Veterans' Appeals that it could rely on its own medical expertise in determining
whether to grant service connection for a disease diagnosed after discharge was not clear and unmistakable error
(CUE). Kaplan v. Peake, 2008, 268 Fed.Appx. 948, 2008 WL 623775, Unreported.Armed Services
134.5
Breach of duty to assist in developing claim
If breach of duty to assist veteran in developing his benefits claim is not known to veteran during adjudication of his
claim, and becomes known to veteran only after decision to deny his claim has become final, veteran may apply to
have final judgment reopened only through the two avenues provided by Congress, clear and unmistakable error
(CUE) and new and material evidence. 38 U.S.C.A. §§ 5108, 5109A. Cook v. Principi, 2002, 318 F.3d 1334,
rehearing en banc denied 56 Fed.Appx. 496, 2003 WL 459755, certiorari denied 123 S.Ct. 2574, 539 U.S. 926, 156
L.Ed.2d 603.Armed Services
134(2)Armed Services
134.5
Government's breach of the duty to assist veteran in developing his benefits claim cannot serve as a basis for clear
and unmistakable error (CUE) supporting collateral attack on regional office's final decision on veteran's claim for
benefits. 38 U.S.C.A. §§ 5103A, 5109A; 38 C.F.R. § 3.105. Cook v. Principi, 2002, 318 F.3d 1334, rehearing en
banc denied 56 Fed.Appx. 496, 2003 WL 459755, certiorari denied 123 S.Ct. 2574, 539 U.S. 926, 156 L.Ed.2d
603.Armed Services
134.5
Breach of the duty to assist veteran in developing claim cannot form the basis for a claim of clear and unmistakable
error (CUE). 38 C.F.R. § 20.1403(d)(2). Roberson v. Principi, 2001, 251 F.3d 1378, on remand 17 Vet.App.
135.Armed Services
134.5
A single request for pertinent service medical records (SMRs) specifically requested by a claimant seeking veterans'
disability benefits and not obtained by the regional office of the Department of Veterans Affairs does not fulfill the duty
to assist veteran in developing facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a).
Hayre v. West, 1999, 188 F.3d 1327, rehearing denied, in banc suggestion declined, on remand 15 Vet.App.
48.Armed Services
133(4)
Breach of duty to assist veteran in developing facts pertinent to claim for veterans' disability benefits is not an error of
the sort that should be contemplated in the analysis for a claim of clear and unmistakable error (CUE). Hayre v.
West, 1999, 188 F.3d 1327, rehearing denied, in banc suggestion declined, on remand 15 Vet.App. 48.Armed
Services
134.5
Breach of duty to assist veteran in developing facts pertinent to claim for veterans' disability benefits was not an error
of the sort that should be contemplated in analysis for claim of clear and unmistakable error (CUE), because, if such
breach occurred, original denial of benefits by regional office of Department of Veterans Affairs was not final for
purposes of appeal. Hayre v. West, 1999, 188 F.3d 1327, rehearing denied, in banc suggestion declined, on
remand 15 Vet.App. 48.Armed Services
134.5
Where there is breach of the duty to assist a veteran in developing factual basis of claim for veterans' disability
benefits, in which the Department of Veterans Affairs (VA) failed to obtain pertinent service medical records (SMRs)
specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency, the
claim does not become final for purposes of appeal. Hayre v. West, 1999, 188 F.3d 1327, rehearing denied, in banc
suggestion declined, on remand 15 Vet.App. 48.Armed Services
158
Alleged breach by Department of Veterans Affairs (VA) of its duty to assist veteran in obtaining evidence necessary
to sustain his claim for service connection for post-traumatic stress disorder (PTSD) could not form basis for veteran's
claim of clear and unmistakable error (CUE) in VA's decision denying service connection claim, regardless of amount
of assistance that VA was required to provide in obtaining additional evidence, given that CUE claim could only be
based on the record that existed at the time of VA's original decision, whereas alleged breach of duty to assist
necessarily implicated evidence that was not on the record at that time. Callahan v. Peake, 2008, 297 Fed.Appx.
993, 2008 WL 4748648, Unreported.Armed Services
134.5
Reexamination
Error of Court of Appeals for Veterans Claims in applying incorrect version of regulation governing reexaminations
was harmless, where relevant portions of the two versions were not materially different from each other, and Court's
interpretation of regulation applied equally to both versions. 38 C.F.R. § 3.327 (1979); § 3.327 (1998). Glover v.
West, 1999, 185 F.3d 1328, rehearing denied, in banc suggestion declined, certiorari denied 120 S.Ct. 1960, 529
U.S. 1108, 146 L.Ed.2d 792.Armed Services
168
Regulation governing reexaminations in context of claim for veteran's disability benefits does not require Department
of Veterans Affairs to request reexamination of veteran in all cases in which veteran attempts to reopen claim for
service-connected disability, but requires reexamination only when there is evidence suggesting material change in
veteran's disability. 38 C.F.R. § 3.327 (1979); 38 C.F.R. § 3.327 (1998). Glover v. West, 1999, 185 F.3d 1328,
rehearing denied, in banc suggestion declined, certiorari denied 120 S.Ct. 1960, 529 U.S. 1108, 146 L.Ed.2d
792.Armed Services
134(2)
Rating reductions
Failure of the Board of Veterans Appeals (BVA) to address regulation governing rating reductions was clear and
unmistakable error (CUE) in Board decision declining to reinstate a compensable rating for veteran's serviceconnected sternum disability. 38 C.F.R. §§ 3.105(a), 3.344. Sorakubo v. Principi, 16 Vet.App. 120 (2002).Armed
Services
141
Outcome-determinative error
To constitute “clear and unmistakable error” (CUE) supporting collateral attack on final decision on veteran's benefits
claim by regional office of Department of Veterans Affairs (VA), alleged error must have been both outcomedeterminative and based upon the evidence of record at the time of the original decision. 38 U.S.C.A. § 5109A; 38
C.F.R. § 3.105. Cook v. Principi, 2002, 318 F.3d 1334, rehearing en banc denied 56 Fed.Appx. 496, 2003 WL
459755, certiorari denied 123 S.Ct. 2574, 539 U.S. 926, 156 L.Ed.2d 603.Armed Services
134.5
To prove existence of “clear and unmistakable error” within meaning of regulation governing re-opening of prior final
decision by Department of Veterans Affairs regional office (RO), claimant must show that outcome-determinative
error occurred, that is, error that would manifestly change outcome of prior decision. 38 C.F.R. § 3.105(a). Yates
v. West, 2000, 213 F.3d 1372, certiorari denied 121 S.Ct. 386, 531 U.S. 960, 148 L.Ed.2d 297.Armed
Services
134.5
In order to establish a valid claim of clear and unmistakable error (CUE) in proceedings on claim for veterans'
disability benefits, the claimant must show that an outcome-determinative error occurred, that is, an error that would
manifestly change the outcome of a prior decision. Hayre v. West, 1999, 188 F.3d 1327, rehearing denied, in banc
suggestion declined, on remand 15 Vet.App. 48.Armed Services
134.5
A successful allegation of clear and unmistakable error (CUE) must be based on an error that manifestly changes the
decision's outcome. 38 U.S.C.A. § 7111(a). Lane v. Principi, 16 Vet.App. 78 (2002), affirmed 339 F.3d
1331.Armed Services
134.5
Evidence
Term “evidence” in statute and regulation providing that decisions of the Secretary of Veterans Affairs (VA) can be
reversed or revised if the evidence establishes clear and unmistakable error (CUE) means the evidence that was of
record at the time of the challenged decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Pierce v. Principi,
2001, 240 F.3d 1348.Armed Services
134.5
Records relating to veteran's transfer request were not “in the record” at the time the Department of Veterans' Affairs
regional office (RO) originally denied veteran's claim of service connection for a psychiatric disorder, and thus could
not form the basis for veteran's claim of clear and unmistakable error (CUE); RO had neither possession nor actual or
constructive knowledge of the transfer request records, despite contention that records were in possession of the
Navy and could have been requested by RO. Palmer v. Shinseki, 2011, 419 Fed.Appx. 983, 2011 WL 836645,
Unreported.Armed Services
134.5
Finality of decision
The finality of a decision by Department of Veterans Affairs (VA) is not vitiated if the VA commits a “grave procedural
error,” such as breach of the duty to assist veteran, when adjudicating veteran's benefits claim; overruling Hayre v.
West, 188 F.3d 1327. 38 U.S.C.A. §§ 5108, 5109A, 7105(c), 7111; 38 U.S.C.(2000 Ed.) § 5107(a). Cook v.
Principi, 2002, 318 F.3d 1334, rehearing en banc denied 56 Fed.Appx. 496, 2003 WL 459755, certiorari denied 123
S.Ct. 2574, 539 U.S. 926, 156 L.Ed.2d 603.Armed Services
132(4)Armed Services
133(1)
Regional office (RO) decision addressed veteran's initial claim for disabilities arising from booby trap explosion
sufficiently for him to deduce that his claim had been adjudicated, and his failure to appeal decision rendered it final,
subject only to attacks based on clear and unmistakable error (CUE) with regard to its effective date. Bradley v.
Peake, 22 Vet.App. 280 (2008).Armed Services
134.5
Burden of proof
Also listed as Presumptions and burden of proof
The party bringing a challenge to a final regional office (RO) decision of the Department of Veterans Affairs (VA) on
the ground of clear and unmistakable error (CUE) bears the burden of proving that the decision was based on a CUE;
burden is not satisfied by the mere assertion that the decision contained CUE; instead, the party must describe the
alleged error with some degree of specificity and must provide persuasive reasons as to why the result would have
been manifestly different but for the alleged error. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). Pierce v. Principi,
2001, 240 F.3d 1348.Armed Services
134.5
Presumptions and burden of proof
See Burden of proof
Judicial review
On appeal of decision of the Board of Veterans Appeals (BVA) finding no clear and unmistakable error (CUE) in prior
Board decision which applied regulation concerning presumption of aggravation of preservice disability, the Court of
Appeals would not consider veteran's arguments which depended on statutory reinterpretation, since the change in
legal standards in the interpretation of a regulation could only retroactively affect decisions still open on direct review,
not those decisions which were final. Jordan v. Nicholson, 2005, 401 F.3d 1296, rehearing en banc denied.Armed
Services
168
If, on direct review of denial of veteran's claim for benefits, the Court of Appeals for Veterans Claims concludes that
there was a breach of government's duty to assist veteran, it may vacate the decision on appeal and remand the case
to the Department of Veterans Affairs (VA) for further consideration following compliance with the duty to assist.
Cook v. Principi, 2002, 318 F.3d 1334, rehearing en banc denied 56 Fed.Appx. 496, 2003 WL 459755, certiorari
denied 123 S.Ct. 2574, 539 U.S. 926, 156 L.Ed.2d 603.Armed Services
167
Court of Appeals lacked jurisdiction over claim that Court of Appeals for Veterans Claims erred by concluding that
Department of Veterans Affairs regional office (RO) did not commit “clear and unmistakable error” by apparently
failing to consult Army regulations when denying claim for back disability due to lack of evidence of service
connection; such determination was fact-based and hence beyond Court of Appeals' jurisdiction. 38 U.S.C.A. §
7292; 38 C.F.R. § 3.105(a). Yates v. West, 2000, 213 F.3d 1372, certiorari denied 121 S.Ct. 386, 531 U.S. 960,
148 L.Ed.2d 297.Armed Services
168
Court of Appeals had jurisdiction over appeal alleging that Court of Appeals for Veterans Claims misinterpreted “clear
and unmistakable error,” as set forth in regulation governing re-opening of prior final decision by Department of
Veterans Affairs regional office (RO). 38 C.F.R. § 3.105(a). Yates v. West, 2000, 213 F.3d 1372, certiorari
denied 121 S.Ct. 386, 531 U.S. 960, 148 L.Ed.2d 297.Armed Services
168
Upon finding that regional office of the Department of Veterans Affairs breached the duty to assist claimant in
developing factual basis of claim for veterans' disability benefits, proper remedy is for Court of Appeals for Veterans
Claims to remand the case to permit the agency of original jurisdiction (AOJ) the opportunity to fulfill the duty to assist
and to review the case to determine whether the additional evidence, together with the evidence that was previously
of record, supports the allowance of benefits sought on appeal. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a).
Hayre v. West, 1999, 188 F.3d 1327, rehearing denied, in banc suggestion declined, on remand 15 Vet.App.
48.Armed Services
167
In order to establish clear and unmistakable error (CUE), the appellant must show that: (1) either the facts known at
the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect
was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had
the error not been made, the outcome would have been “manifestly different.” Bouton v. Peake, 23 Vet.App. 70
(2008).Armed Services
134.5
The correct application of a statute or regulation as it was understood at the time does not retroactively become clear
and unmistakable error (CUE) where, subsequent to the decision challenged, there has been a change in the
interpretation of the statute or regulation; accordingly, a recent or novel interpretation of law cannot be used to
support a CUE motion, because any interpretation would not change what the law was understood to mean at the
time of the original decision. Lamb v. Peake, 22 Vet.App. 227 (2008).Armed Services
134.5
Decision of the Board of Veterans Appeals (BVA) denying claim of clear and unmistakable error (CUE) in prior Board
decision would be vacated, where prior Board decision was not final but still pending on appeal before the Court of
Appeals for Veterans Claims, and thus the CUE claim was premature. May v. Nicholson, 19 Vet.App. 310 (2005),
reconsideration denied 20 Vet.App. 154, appeal filed 20 Vet.App. 392, affirmed 208 Fed.Appx. 924, 2006 WL
3539293.Armed Services
142
A claim of clear and unmistakable error (CUE) or any collateral attack cannot lie as to a decision of the Board of
Veterans Appeals (BVA) that is still open to direct review; the sole purpose of a CUE claim is to provide a claimant
with an opportunity to challenge a decision that is otherwise final and unappealable. May v. Nicholson, 19 Vet.App.
310 (2005), reconsideration denied 20 Vet.App. 154, appeal filed 20 Vet.App. 392, affirmed 208 Fed.Appx. 924, 2006
WL 3539293.Armed Services
142
A claim of clear and unmistakable error (CUE) cannot be raised for the first time before the Court of Appeals for
Veterans Claims but, rather, such a claim must have been the subject of a final prior adjudication of the Board of
Veterans Appeals (BVA). May v. Nicholson, 19 Vet.App. 310 (2005), reconsideration denied 20 Vet.App. 154,
appeal filed 20 Vet.App. 392, affirmed 208 Fed.Appx. 924, 2006 WL 3539293.Armed Services
158
On appeal of decision of the Board of Veterans Appeals (BVA) finding no clear and unmistakable error (CUE) in prior
Board decision which applied regulation concerning presumption of aggravation of preservice disability, the Court of
Appeals for Veterans Claims would not consider veteran's arguments which depended on statutory reinterpretation,
since CUE does not encompass the otherwise correct application of a regulation as to which there has been a
subsequent change in interpretation of the governing statute or the regulation itself. 38 U.S.C.A. §§ 1111, 1153;; 38
C.F.R. §§ 3.306, 20.1403(e). Jordan v. Principi, 17 Vet.App. 261 (2003), affirmed 401 F.3d 1296, rehearing en banc
denied.Armed Services
165(1)
Review of a decision of the Board of Veterans Appeals (BVA) considering clear and unmistakable error (CUE) in prior
adjudications over which the Court of Appeals for Veterans Claims does not have jurisdiction is limited to whether the
Board's decision was “arbitrary and capricious, an abuse of discretion, or not in accordance with the law.” 38
U.S.C.A. § 7261(a)(3)(A). Sorakubo v. Principi, 16 Vet.App. 120 (2002).Armed Services
Services
165(4)
165(1)Armed
Review of decisions of the Board of Veterans Appeals (BVA) evaluating allegations of clear and unmistakable (CUE)
in prior Board decisions is limited to whether the Board's evaluation of CUE was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law, and whether the decision is supported by an adequate statement
of reasons or bases. 38 U.S.C.A. §§ 7104(d)(1), 7261(a)(3)(A). Lane v. Principi, 16 Vet.App. 78 (2002),
affirmed 339 F.3d 1331.Armed Services
165(1)Armed Services
165(4)
Although the Court of Appeals for the Veterans Claims will conduct de novo review of whether a viable allegation of
clear and unmistakable error (CUE) has been presented to the Board of Veterans Appeals (BVA), the question
whether the Board erred in determining that a prior decision did not contain CUE is reviewed by the Court under the
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review. 38
U.S.C.A. § 7261(a)(3)(A). Lane v. Principi, 16 Vet.App. 78 (2002), affirmed 339 F.3d 1331.Armed
Services
165(1)Armed Services
165(4)
Board of Veterans' Appeals did not commit clear and unmistakable error warranting revision of decision denying
service connection for a back condition by relying on its own medical expertise, since its decision was rendered in
1986 and Board was not required to base its decisions on independent medical evidence until 1991. Fernandez v.
Peake, 2008, 299 Fed.Appx. 973, 2008 WL 4911446, Unreported.Armed Services
134.5