Misc. topics concerning disability compensation:

 

Clear and Unmistakable Error (CUE):

The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error. However, to qualify as a CUE, the error can not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they were known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.

 

Some other elements besides judgment by a decision maker that also cannot form a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion, or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurately portrayed the current overall limited range of motion.

 

CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim.

Pyramiding:
Pyramiding is the prohibition of assigning more than one evaluation per disability based on the same symptoms. (see 38 C.F.R. §4.14)

 

The VA compensates a veteran for symptoms of residuals from injuries or diseases suffered to a body part while on active duty, not the number of injuries or diagnosis to a particular body area. For example, if a veteran has a lower back disability, let’s say IVDS with a scoliosis. The scoliosis would not be rated separately because it is also within the lower back. It would be “lumped” together in the rating with IVDS. Having said that, the lower spine (Lumbar and Thoracic) and upper spine (Cervical) can be rated separately, because they are two separate moving parts of the spine. Another common one that veterans seem to misunderstand is with mental disabilities. A veteran can only be compensated for one mental disability at a time. For example, if a veteran has PTSD and Depression, the VA would determine which of the two warrants the higher rating and “lump” the lesser one with the other.

Reasonable Doubt rule:
The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 C.F.R. §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded their claim. This is just like in baseball as the "tie goes to the runner." Keep in mind this doesn't mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn't mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

 

Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.

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U.S. Department of Veterans Affairs claims assistance for veterans worldwide. Accredited VA claims Agent pursuant 38 C.F.R. §14.629